Donald Joseph Boutilier Appellant v. Her Majesty The Queen, 2017 SCC 64

SUPREME COURT OF CANADA Citation: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936 Appeal Heard: May 23, 2017 Judgment Rendered: December 21, 2017 Docket: 37168 Between: Donald Joseph Boutilier Appellant and Her Majesty The Queen Respondent - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Saskatchewan, Attorney General of Alberta, Criminal Lawyers’ Association of Ontario, Aboriginal Legal Services Inc. and Yukon Legal Services Society Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

Reasons for Judgment: (paras. 1 to 89) Côté J. (McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Brown and Rowe JJ. concurring) Reasons Dissenting in Part: (paras. 90 to 137) Karakatsanis J. R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936

Donald Joseph Boutilier Appellant v. Her Majesty The Queen Respondent and Attorney General of Canada, Attorney General of Ontario, Attorney General of Saskatchewan, Attorney General of Alberta, Criminal Lawyers’ Association of Ontario, Aboriginal Legal Services Inc. and Yukon Legal Services Society Interveners Indexed as: R. v. Boutilier 2017 SCC 64 File No.: 37168. 2017: May 23; 2017: December 21.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. on appeal from the court of appeal for british columbia Constitutional law — Charter of Rights — Fundamental justice — Overbreadth — Sentencing — Dangerous offender — Designation — Whether sentencing judge precluded from considering future treatment prospects when deciding whether to designate an offender as dangerous — If so, whether s. 753(1) overbroad contrary to s. 7 of Canadian Charter of Rights and Freedoms — Criminal Code, R.S.C. 1985, c. C-46, s. 753(1) .

Constitutional law — Charter of Rights — Fundamental justice — Overbreadth — Cruel and unusual punishment — Sentencing — Dangerous offender — Penalty — Indeterminate detention — Principles governing application of s. 753(4.1) of Criminal Code — Whether s. 753(4.1) overbroad by applying to offenders that could be monitored under long-term offender scheme — Whether s. 753(4.1) leads to grossly disproportionate sentence by presumptively imposing indeterminate detention and preventing judge from imposing fit sentence consistent with principles and objectives of sentencing under Criminal Code — Canadian Charter of Rights and Freedoms, ss. 7 , 12 — Criminal Code, R.S.C. 1985, c.

C-46, s. 753(4.1). Criminal law — Sentencing — Dangerous offender — Indeterminate detention — Accused declared to be dangerous offender — Whether sentencing judge erred in imposing indeterminate sentence — Criminal Code, R.S.C. 1985, c. C-46, s. 753(4) , (4.1) . 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, i f 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 (Karakatsanis J. dissenting in part): 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 .

T he 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, falls 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 beenappropriate and been adequate for public protection had the sentencing judge not proceeded on the basis that his discretion was curtailedby s. 753(4.1), an unconstitutional provision.

A new hearing is therefore required to determine the appropriate sentence. Cases Cited By Côté J. Overruled: R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401; applied: R. v. Lyons, (SCC), [1987] 2 S.C.R.309; R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357; referred to: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423; Hatchwell v. TheQueen, (SCC), [1976] 1 S.C.R. 39; R. v. Currie, (SCC), [1997] 2 S.C.R. 260; R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368; R. v. Jones, (SCC), [1994] 2 S.C.R. 229; R. v. Carleton (1981), 1981 ABCA 220, 32 A.R. 181, aff’d (SCC), [1983] 2 S.C.R. 58; R. v.

Sullivan (1987), (ON CA), 20 O.A.C.323; R. v. Newman (1994), (NL CA), 115 Nfld. & P.E.I.R. 197; R. v. Oliver (1997), 1997 ABCA 49 , 114C.C.C. (3d) 50; R. v. Neve, 1999 ABCA 206, 137 C.C.C. (3d) 97; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1S.C.R. 180; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Lacasse, 2015 SCC64, [2015] 3 S.C.R. 1089; R. v. Warawa, 2011 ABCA 294, 278 C.C.C. (3d) 409; R. v.

Osborne, 2014 MBCA 73, 314 C.C.C. (3d) 57; R.v. Bragg, 2015 BCCA 498, 332 C.C.C. (3d) 145; R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 291; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Crowe, Ont. Ct. J., No. 10-10013990, March 22, 2017. By Karakatsanis J. (dissenting in part) R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357; R. v. Nur, 2015SCC 15, [2015] 1 S.C.R. 773; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; R. v.Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v.

Steele, 2014 SCC 61, [2014] 3 S.C.R. 138; R. v. Currie, (SCC), [1997]2 S.C.R. 260; R. v. Taillefer, 2015 ONSC 2357; R. v. S.M. (2005), (ON CA), 196 O.A.C. 127; R. v. Langevin (1984), (ON CA), 45 O.R. (2d) 705; R. v. Neve, 1999 ABCA 206, 137 C.C.C. (3d) 97; R. v. Szostak, 2014 ONCA 15, 118O.R. (3d) 401; R. v. Shea, 2017 NSCA 43, 349 C.C.C. (3d) 231; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v.Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Williams, (SCC), [1998] 1 S.C.R. 1128; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v.

Walsh, 2017 BCCA 195,348 C.C.C. (3d) 1; R. v. Payne (2001), (ON SC), 41 C.R. (5th) 156; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C.(3d) 3; R. v. B. (D.V.), 2010 ONCA 291, 100 O.R. (3d) 736, leave to appeal refused, [2011] 3 S.C.R. vii; Re Moore and the Queen(1984), (ON SC), 10 C.C.C. (3d) 306; R. v. R.S., 2016 ONSC 7767; R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 280;R. v. Goodwin, 2002 BCCA 513, 168 C.C.C. (3d) 14; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423; R. v. Horvath (1997), (SK CA), 117 C.C.C. (3d) 110.

Statutes and Regulations Cited Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, thePrisons and Reformatories Act and the Department of the Solicitor General Act, S.C. 1997, c. 17. Canadian Charter of Rights and Freedoms, ss. 1, 7, 12. Constitution Act, 1982, s. 52(1). Criminal Code, R.S.C. 1970, c. C-34, s. 688 [rep. & sub. 1976-77, c. 53, s. 14]. Criminal Code, R.S.C. 1985, c. C-46, ss. 718 to 718.2, 718, 718.1, 718.2, 718.3, 742.1,

Part XXIV, 752 to 761, 752 “serious personalinjury offence”, 752.1, 753, 753.01, 753.1, 757(a), 759, 761(1). Tackling Violent Crime Act, S.C. 2008, c. 6. Authors Cited Canada. Public Safety Canada Portfolio Corrections Statistics Committee. Corrections and Conditional Release Statistical Overview,2008 Annual Report. Ottawa: Public Works and Government Services Canada, 2008. Canada. Public Safety Canada Portfolio Corrections Statistics Committee. Corrections and Conditional Release Statistical Overview,2015 Annual Report. Ottawa: Public Works and Government Services Canada, 2016. Canada.

Public Safety Canada Portfolio Corrections Statistics Committee. Corrections and Conditional Release Statistical Overview,2016 Annual Report. Ottawa: Public Works and Government Services Canada, 2017. Canada. Royal Commission to Investigate the Penal System of Canada. Report of the Royal Commission to Investigate the Penal Systemof Canada. Ottawa: King’s Printer, 1938. Neuberger, Joseph A. Assessing Dangerousness: Guide to the Dangerous Offender Application Process. Toronto: Carswell, 2011

(loose-leaf updated 2017). Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing , 8th ed. Markham, Ont.: LexisNexis, 2012. APPEAL from a judgment of the British Columbia Court of Appeal (Smith, Groberman and Goepel JJ.A.), 2016 BCCA 235 , 336 C.C.C. (3d) 293, 356 C.R.R. (2d) 275, 29 C.R. (7th) 419, 388 B.C.A.C. 264, 670 W.A.C. 264, [2016] B.C.J. No. 1116 (QL), 2016 CarswellBC 1487 (WL Can.), setting aside in part the decisions of Voith J., 2015 BCSC 901 , 325 C.C.C. (3d) 345, [2015] B.C.J.

No. 1102 (QL), 2015 CarswellBC 1464 (WL Can.); and 2014 BCSC 2187 , 317 C.C.C. (3d) 1, 324 C.R.R. (2d) 221, [2014] B.C.J. No. 2867 (QL), 2014 CarswellBC 3475 (WL Can.). Appeal dismissed, Karakatsanis J. dissenting in part. Eric Purtzki , Gary N. A. Botting and Michael Sobkin , for the appellant. Rodney Garson and Michael Brundrett , for the respondent. Diba B. Majzub , for the intervener the Attorney General of Canada. Gregory J. Tweney and Jennifer A. Crawford , for the intervener the Attorney General of Ontario. W. Dean Sinclair , Q.C. , for the intervener the Attorney General of Saskatchewan.

Sarah Clive , for the intervener the Attorney General of Alberta. Catriona Verner and Corbin Cawkell , for the intervener the Criminal Lawyers’ Association of Ontario. Jonathan Rudin and Caitlyn E. Kasper , for the intervener the Aboriginal Legal Services Inc. Vincent Larochelle , for the intervener the Yukon Legal Services Society. The judgment of McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Côté, Brown and Rowe JJ. was delivered by Côté J. — I. Overview [ 1 ] The appellant, Mr. Boutilier, challenges the constitutional validity of s. 753(1) and (4.1) of the Criminal Code , R.S.C. 1985, c.

C-46, two provisions at the core of the dangerous offender regime, under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms . [ 2 ] Mr. Boutilier pleaded guilty to six criminal charges arising out of the robbery of a pharmacy with an imitation firearm and an ensuing car chase. In turn, the Crown brought an application seeking his designation as a dangerous offender and the imposition of a sentence of indeterminate detention. After the close of evidence in the dangerous offender hearing, Mr.

Boutilier served a notice of constitutional question challenging the constitutionality of the provisions. [ 3 ] The impugned Criminal Code provisions, which were most recently amended in 2008 by the Tackling Violent Crime Act , S.C. 2008, c. 6 (“2008 amendments”), authorize the most extreme and clearest form of preventive sentence that can be imposed on an offender, indeterminate detention, in order to protect the public from a small group of persistent criminals with a propensity for committing violent crimes against the person. [ 4 ] Mr.

Boutilier submits that s. 753(1) is overbroad and violates s. 7 on the basis that a sentencing judge is precluded from considering an offender’s future treatment prospects in conducting a prospective risk assessment. He further submits that s. 753(4.1) is overbroad and violates s. 7 as it may result in the imposition of an indeterminate sentence on an offender who can be controlled under the long-term supervision provisions of the Criminal Code .

He also submits that s. 753(4.1) imposes “grossly disproportionate” punishment contrary to s. 12 on the basis that it heavily curtails judicial discretion at the sentencing stage in favour of indeterminate detention. Finally, he submits that the sentencing judge erred in imposing an indeterminate sentence. [ 5 ] The sentencing judge granted Mr. Boutilier’s application in part, finding only that s. 753(1) is unconstitutionally overbroad.

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 Mr. Boutilier’s appeal of his indeterminate sentence. [ 6 ] The appeal to this Court raises four issues, which I resolve as follows: A. Does s. 753(1) preclude a sentencing judge from considering future treatment prospects before designating an offender as dangerous? If so, is this

section overbroad under s. 7 of the Charter ? In my view, consideration of future treatment prospects has always been part of the prospective assessment of risk required by s. 753(1). There is no overbreadth. B. Does s. 753(4.1) 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 consistent with the principles and objectives of sentencing?

In my view, s. 753(4.1) does not impose punishment that is grossly disproportionate. It does not create a presumption in favour of indeterminate detention, and the sentencing judge must apply the principles and objectives of sentencing to impose a fit sentence. C. Is s. 753(4.1) overbroad in violation of s. 7 of the Charter because it applies to offenders that could have been monitored under the long-term offender scheme? In my view, it is not. D. Did the sentencing judge err by sentencing Mr. Boutilier to an indeterminate period of detention?

In my view, he did not. [ 7 ] For these reasons, the appeal should be dismissed. II. Judgments Below A. Sentencing Judgment — Supreme Court of British Columbia, 2014 BCSC 2187 , 317 C.C.C. (3d) 1, and 2015 BCSC 901 , 325 C.C.C. (3d) 345, per Voith J. (November 21, 2014 and May 29, 2015) [ 8 ] The sentencing judge found that s. 753(1) is overbroad and thus violates s. 7 of the Charter . In his view, this subsection does not allow a sentencing judge to consider an offender’s future treatment prospects before designating him or her as dangerous.

Consequently, an offender who may not necessarily be dangerous in the future could still be designated under the scheme and face the risk of a sentence of indeterminate detention. Additionally, he found that the designation under s. 753(1) is permanent and can have downstream consequences under s. 753.01, potentially leading the accused to be sentenced to an indeterminate sentence for a subsequent offence without necessarily being redesignated as dangerous.

He held that the s. 7 breach was not justified under s. 1 of the Charter as Parliament could have enacted legislation addressing the legitimate objectives of the scheme while infringing offenders’ rights to a lesser extent. He declared s. 753(1) to be invalid but suspended this declaration of invalidity for one year. [ 9 ] The sentencing judge found that the other impugned subsection, s. 753(4.1), does not violate s. 7 or 12 of the Charter . First, he held that this provision does not impose a persuasive or evidentiary burden on the accused to rebut the presumption of indeterminate detention.

Second, he held that a judge’s residual discretion under s. 753(4.1) ensures that indeterminate detention will not be imposed where it is unnecessary to protect the public. [ 10 ] Despite the suspended declaration of invalidity, the sentencing judge found that, in this case, the Crown had established the statutory criteria under s. 753(1) beyond a reasonable doubt. The sentencing judge held that Mr.

Boutilier was a dangerous offender and sentenced him to an indeterminate detention, finding that his prospect of successful treatment was nothing more than an “expression of hope” and, therefore, that no lesser sentence would adequately protect the public: s. 753(4.1). B. Court of Appeal for British Columbia, 2016 BCCA 235 , 336 C.C.C. (3d) 293, per Smith J.A. ( Groberman and Goepel JJ.A. Concurring) (June 2, 2016) [ 11 ] The Crown appealed the declaration of constitutional invalidity with respect to s. 753(1). In turn, Mr.

Boutilier appealed the sentencing judge’s decision on the constitutionality of s. 753(4.1) as well as his dangerous offender designation and his indeterminate sentence. The Crown’s appeal was allowed and Mr. Boutilier’s appeal was dismissed. [ 12 ] The Court of Appeal held that the sentencing judge had erred in finding s. 753(1) to be unconstitutionally overbroad.

Although it found that treatment prospects have a limited role to play at the designation stage, its ultimate conclusion was that consideration of future treatment prospects at the sentencing stage is sufficient to avoid capturing offenders who may not be dangerous. The Court of Appeal upheld the sentencing judge’s decision regarding s. 753(4.1) and Mr. Boutilier’s sentence. III.

The Statutory Scheme [ 13 ] The dangerous offender scheme is designed as a “two stage” process. [ 14 ] Section 753(1) lists the statutory requirements that must be met before a court can designate an offender as dangerous (“designation stage”): 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of the definition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [ 15 ] Subsections (4) and (4.1) of s. 753 relate to the sentencing of a dangerous offender (“penalty stage”):

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 16 ] Section 753(1) contemplates two categories of dangerousness: (

a) dangerousness resulting from violent behaviour (as in Mr. Boutilier’s case), and (

b) dangerousness ensuing from sexual behaviour. Only the former category is at issue in this appeal. [ 17 ] The Crown must demonstrate two elements to obtain a designation of dangerousness resulting from violent behaviour. First, the offence for which the offender has been convicted must be “a serious personal injury offence”: s. 753(1)(a). This first criterion is objective. There is no room for judicial discretion, since s. 752 defines the list of serious personal injury offences. [ 18 ] Second , the offender must represent “a threat to the life, safety or physical or mental well-being of other persons”.

This second element, the requisite threat level, requires that the judge evaluate the threat posed by the offender on the basis of evidence establishing one of the following three violent patterns of conduct: (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint;

These subparagraphs are disjunctive — they provide three standalone grounds for finding that the offender is a “threat” under s. 753(1). [19] These grounds have not changed since the enactment of the scheme in 1977. Indeed, a brief overview of thescheme’s legislative history is in order. [20] The scheme was first introduced in 1977, subsequently amended in 1997, and amended again in 2008. When thescheme was enacted in 1977, it was referred to as a “two stage” process.

At the designation stage, the sentencing judge had to determineif the statutory criteria were satisfied and then had the discretion to designate the individual. At the sentencing stage, the sentencingjudge had to exercise his or her discretion again to decide whether to impose an indeterminate sentence. In 1997, the scheme became a“one stage” process. The judge had discretion to designate an offender as dangerous, but there was no discretion at the sentencingstage — an indeterminate sentence flowed as a consequence of the designation.

The current version of the scheme reverts to a “twostage” process but removes the discretionary language from the designation stage. If a sentencing judge is satisfied that the statutorycriteria have been met, the designation must follow. There is, however, some discretion remaining at the sentencing stage. Unders. 753(4.1), a sentencing judge must impose an indeterminate sentence on a designated individual unless he or she is satisfied that there isa reasonable expectation that a lesser measure will adequately protect the public. IV. Analysis A.

Does Section 753(1) Preclude a Sentencing Judge From Considering Future Treatment Prospects Before Designating anOffender as Dangerous? If So, Is This

Section Overbroad Under

Section 7 of the Charter? [21] Mr. Boutilier’s contention is as follows. Under the current “two stage” approach, prospective evidence of futuretreatment cannot be considered at the designation stage and is relevant only at the penalty stage under s. 753(4.1). As a result, theprovision is overbroad since it captures offenders who do not pose a future threat to public safety. Mr. Boutilier concedes that, should theCourt find that prospective evidence must be considered at the designation stage, his overbreadth argument must fail. [22] The sentencing judge agreed with Mr. Boutilier.

He assumed that, with the passing of the 2008 amendments, thedesignation criteria now only allow for the consideration of retrospective evidence at the designation stage. This led him to find that,absent any consideration of an offender’s treatment prospects, the statutory criteria for designation under s. 753(1) are so broad in scopethat they capture offenders who do not pose a future risk to public safety. This overbreadth is contrary to the principles of fundamentaljustice and to s. 7 of the Charter.

The Court of Appeal, while of the view that consideration of future treatment prospects at the penaltystage does not result in overbreadth, found that the designation stage has never required consideration of an offender’s future treatmentprospects. [23] In my view, Mr. Boutilier’s arguments are unavailing. A prospective assessment of risk has always been part ofs. 753(1). The 2008 amendments did not change the requirements for this assessment.

In line with the purpose and wording of s. 753(1)as well as the consistent jurisprudence of this Court, an offender cannot be designated as dangerous unless the judge concludes that he orshe is a future “threat” after a prospective assessment of risk. Contrary to the divided jurisprudence on this point and the reasons of theCourt of Appeal in this matter, this future risk assessment has always required consideration of future treatment prospects.

This, in turn,means that the designation provision is not overbroad as it does not capture offenders who, though currently a threat to others, may ceaseto be in the future, notably after successful treatment.

(1) The Requirements for Prospective Assessment of Risk Under Section 753(1) Remain Unchanged [24] Mr. Boutilier’s submissions and the sentencing judge’s conclusions relating to overbreadth rely on the assumptionthat the required assessment of prospective risk under s. 753(1) changed with the 2008 amendments, increasing the scope of theprovision. This is not the case. The consistent language and the purpose of the provision both lead to the conclusion that the prospectiverisk assessment remains the same. [25] This Court considered the constitutionality of this statutory scheme in the leading case of R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309. [26] In Lyons, Justice La Forest read the objective element of the designation — the requirement that the predicateoffence be a “serious personal injury offence” — together with the subjective element — the “threat” assessment — and concluded thatfour criteria were “explicit” from the language of s. 753(1): (1) the offender has been convicted of, and has to be sentenced for, a “seriouspersonal injury offence”; (2) this predicate offence is part of a broader pattern of violence; (3) there is a high likelihood of harmfulrecidivism; and (4) the violent conduct is intractable (p. 338).

The last three criteria are part of the assessment of the “threat” posed bythe offender. The last two of these are future-oriented, and Justice La Forest explained them as follows: Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which thesection seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences,conduct causing injury, pain or other evil to other persons.

Also explicit in one form or another in each subparagraph of s. [688, now 753]is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. [Emphasisadded; p. 338.] [27] The language of s. 753(1), which led Justice La Forest to develop the four criteria outlined above, has never beenamended since its enactment in 1977. Before designating a dangerous offender, a sentencing judge must still be satisfied on the evidencethat the offender poses a high likelihood of harmful recidivism and that his or her conduct is intractable.

I understand “intractable”conduct as meaning behaviour that the offender is unable to surmount. Through these two criteria, Parliament requires sentencing judgesto conduct a prospective assessment of dangerousness. [28] Justice La Forest concluded what would today be referred to as an overbreadth analysis by finding that the fours. 753(1) criteria define a very small group of offenders for whom the risk of indeterminate preventive detention is constitutional:

Not only has a diligent attempt been made to carefully define a very small group of offenders whose personal characteristics andparticular circumstances militate strenuously in favour of preventive incarceration, but it would be difficult to imagine a better tailoredset of criteria that could effectively accomplish the purposes sought to be attained. [p. 339] He held that the designation criteria are sufficiently narrow and precise so as to apply only to offenders that pose a future threat to otherpersons, such that the risk of indeterminate detention is rationally tied to the public protection purpose of the scheme.

Since these criteriahave not subsequently been amended, the Court’s conclusion that s. 753(1) does not overreach still applies. [29] Mr. Boutilier relies on R. v. Szostak, 2014 ONCA 15, 118 O.R. (3d) 401, for the proposition that intractability is nolonger a requirement under the current dangerous offender regime.

In my view, it is Lyons and not Szostak that remains authoritative onthis issue. [30] The Ontario Court of Appeal in Szostak, at paras. 53-55, concluded that intractability is no longer an element ofdangerousness because it is incompatible with the exercise of discretion to impose a determinate sentence at the penalty stage. The Courtof Appeal considered that an offender whose conduct is intractable should rarely, if ever, be eligible to receive a lesser sentence. [31] I respectfully disagree with this conclusion.

As I will discuss below, the purposes of prospective evidence at thedesignation and sentencing stages are different. The designation stage is concerned with assessing the future threat posed by an offender.The penalty stage is concerned with imposing the appropriate sentence to manage the established threat.

Though evidence may establishthat an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind towhether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence. [32] The elements of the dangerous offender designation as set out in Lyons are therefore not incompatible with theexercise of discretion at the penalty stage. Indeed, there was also discretion at the penalty stage under the 1977 regime. This did notprevent this Court from concluding that intractability was a requirement in Lyons.

More importantly, this Court in Lyons clearly groundedthe intractability requirement in the statutory language, which has not changed since 1977. I therefore cannot see how it can be said thatintractability has ceased to be a requirement of the designation. [33] There are therefore four designation criteria under s. 753(1) — two of which are meant to limit designation tooffenders posing a real future threat to other persons. These limits on designation align with the provision’s purpose, which has also beenconsistent over time.

This Court has characterized the sentence of indeterminate detention as being a preventive sentence “in its clearestand most extreme form”: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 19. The purpose of this type of sentence has alwaysbeen “neither punitive nor reformative but primarily [the offender’s] segregation from society”: Report of the Royal Commission toInvestigate the Penal System of Canada (1938), at p. 223.

This preventive sanction can be imposed only upon offenders for whomsegregation from society is a rational means to achieve the overriding purpose of public safety. [34] A provision imposing an indeterminate detention is therefore not overbroad if it is carefully “confined in itsapplication to those habitual criminals who are dangerous to others”: Lyons, at p. 323. For an offender to be so “dangerous” as to renderthe “clearest and most extreme form” of preventive sentence a rational means to achieve the purpose of public safety, the offender mustpose a future “threat” to public safety.

This threat, characterized by the elements set out in Lyons, must consequently elevate thesentencing objective of segregation from society, at least in part, over the other objectives: Lyons, at pp. 328-29. [35] Determining whether or not a high risk of recidivism and intractability are present necessarily involves a prospectiveinquiry into whether an offender will continue to be, in Justice Dickson’s words (as he then was), “a real and present danger to life orlimb”: Hatchwell v. The Queen, (SCC), [1976] 1 S.C.R. 39, at p. 43.

For the Court in Lyons, this prospective inquirywas critical to the constitutionality of the scheme. An entirely retrospective assessment could not ensure that indeterminate sentenceswere rationally connected to the objective of public safety going forward. Nor could it avoid catching offenders who had proved violentin the past but who presented no future threat. [36] The jurisprudence of this Court subsequent to Lyons has consistently considered a prospective assessment of risk tobe a component of dangerous offender applications. In R. v.

Currie, (SCC), [1997] 2 S.C.R. 260, Lamer C.J. said that ajudge has to “be satisfied beyond a reasonable doubt of the likelihood of future danger that an offender presents to society before he or she can impose the dangerous offender designation and an indeterminate sentence”: para. 25.[1] In Sipos, at para. 20, which concerneds. 753(1)(b), this Court explained that designation requires evidence on both the retrospective and the prospective elements. [37] Indeed, three features of the designation scheme demonstrate the importance of prospective evidence to a finding ofdangerousness.

First, the pattern of violence that is proven through evidence of past conduct is future-oriented — it must show a“likelihood” of harmful recidivism “in the future”: see the language in s. 753(1)(a). As Neuberger put it, “[t]hough a past pattern may beproved by the Crown, if there is no evidence that such a pattern will necessarily lead to a likelihood of re-offence, the dangerous offenderapplication will fail”: J. A. Neuberger, Assessing Dangerousness: Guide to the Dangerous Offender Application Process (loose-leaf), atp. 4-27.

A past pattern of violence is considered in the global assessment of an offender’s future behaviour, which, in turn, is consideredby the court in determining whether the offender constitutes a “threat”. [38] Reference to the other category of dangerousness based on sexual conduct, under s. 753(1)(b), reinforces theconclusion that s. 753(1)(

a) mandates a prospective assessment. This category requires, in addition to evidence of a pattern of pastconduct, an independent assessment of future risk: The offender must be shown to have failed in the past “to control his or her sexual impulses” and, in the future, that there is “a likelihoodof causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses”. [Emphasis added;citation omitted.]

(Sipos, at para. 20) [39] Second, the Criminal Code requires that an assessment report be filed before a dangerous offender application canproceed: ss. 752.1 and 753(1). Usually, the assessment is conducted by a psychiatrist or psychologist: Neuberger, at p. 2-1. This reportincludes expert evidence on prospective aspects of dangerousness, such as risk factors, probabilities of recidivism, and treatmentprospects: R. v. Jones, (SCC), [1994] 2 S.C.R. 229; see also Lyons, at pp. 364-65. [40] Third, s. 757(

a) provides that “evidence of character and repute may be admitted on the question of whether theoffender is or is not a dangerous offender”. Such evidence, while grounded in past conduct, is future-oriented — it speaks to thelikelihood of harmful recidivism and the intractability of the violent pattern of conduct. If a dangerousness finding could be madewithout any prospective assessment of risk, this type of reputational evidence would be irrelevant to the designation, since it tends toshow the offender’s propensity for future bad acts.

Indeed, it is not highly probative of past conduct, which is better proven by evidenceof the prior bad acts themselves. Thus, by making evidence of character and repute relevant to the designation, this provision stronglysuggests that a prospective assessment of future risk is part of the inquiry. [41] Section 753(1) states that, once the judge is satisfied that the designation criteria are met, the judge “shall” designatethe offender as dangerous. Recall that before the 2008 amendments, the legislation provided that, once these criteria were met, the judge“may” make the designation.

Some interveners suggested that this amendment requires the judge to declare an offender dangerous assoon as the statutory criteria are met, even if the judge is not satisfied of his or her future dangerousness. This argument is based on thepremise that the statutory criteria for designation are overbroad and might apply to non-dangerous offenders. However, as explainedabove, a prospective assessment of the future risk posed by an offender is embedded within the dangerous offender criteria.

Thus, ajudge “shall” designate an offender as dangerous only if he or she is satisfied beyond a reasonable doubt that the offender actuallyconstitutes a future threat to safety in light of all the relevant evidence. Once a judge finds an offender to be a “threat” after a prospectiveassessment of harmful recidivism and intractability, requiring a further exercise of discretion to determine whether the offender poses afuture risk would be unnecessary and would contradict the very conclusion the judge has just reached.

(2) Evidence of Future Treatment Prospects Remains Relevant at Both Stages of the Statutory Scheme [42] This brings us to the central issue in the instant case, namely whether a sentencing judge is entitled to considerevidence of future treatment prospects when deciding whether to designate an offender as opposed to when imposing a sentence. ThoughI recognize that the jurisprudence on this question has been divided, with some courts finding future treatment prospects to be irrelevantat the designation stage (R. v.

Carleton (1981), 1981 ABCA 220 , 32 A.R. 181 (C.A.), at para. 13, aff’d (SCC), [1983] 2 S.C.R. 58; R. v. Sullivan (1987), (ON CA), 20 O.A.C. 323, at para. 23; R. v. Newman (1994), (NL CA), 115 Nfld. & P.E.I.R. 197 (C.A.), at para. 127; R. v. Oliver (1997), 1997 ABCA 49 , 114 C.C.C. (3d) 50(Alta. C.A.), at p. 57), and some finding them to be a relevant consideration (R. v. Neve, 1999 ABCA 206, 137 C.C.C. (3d) 97, atpara. 241), I cannot agree with the Court of Appeal that the criteria for designation “have never included the future treatability of theoffender”: para. 53.

An offender’s future treatment prospects are, and have always been, a relevant consideration at the designation stage. [43] As the assessment of prospective risk described above is concerned with whether an offender will continue to be “areal and present danger”, being unable to surmount his or her violent conduct, the sentencing judge must consider all retrospective andprospective evidence relating to the continuing nature of this risk, including future treatment prospects.

Furthermore, I am of the viewthat confining the consideration of treatability to the choice of penalty under s. 753(4.1) rests on a theoretical distinction between thedesignation stage and the penalty stage that is neither practical nor useful. [44] Given that a dangerous offender application is typically conducted in one hearing, it would be artificial to distinguishevidence that should be considered to designate an offender as dangerous from evidence that should be considered to determine theappropriate sentence.

All of the evidence adduced during a dangerous offender hearing must be considered at both stages of thesentencing judge’s analysis, though for the purpose of making different findings related to different legal criteria. During the applicationhearing, the Crown or the accused must present any prospective evidence concerning risk, intractability, or treatment programs,including the required assessment report addressing prospective treatment options.

Many aspects of clinical evaluations provide evidencegoing to both the assessment of the offender’s future risk and the sentence necessary to manage this risk: Clinical evaluations identifying the presence of enduring mental illnesses and their treatability, presence of deeply ingrained personalitytraits or personality disorders that are likely to persist with time, sexual deviations, and substance-use disorders all become relevant inunderstanding the meaning of repetitive behaviours, persistent aggressive behaviours, and their relationship to the predicateoffence/offences.

The presence of impulsivity, lack of empathy, and need for immediate gratification at the expense of others will assistthe court in examining whether the risk assessment and management of risk factors are related to the statutory tests concerned.[Emphasis added; footnotes omitted.] (Neuberger, at p. 2-37) [45] The same prospective evidence of treatability plays a different role at the different stages of the judge’s decision-making process.

At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penaltystage, it helps determine the appropriate sentence to manage this threat. Thus, offenders will not be designated as dangerous if theirtreatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a highlikelihood of harmful recidivism or that their violent pattern is intractable: see Neuberger, at p. 7-1, by M. Henschel.

However, evenwhere the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant inchoosing the sentence required to adequately protect the public.

(3) Conclusion [46] In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a

high likelihood of harmful recidivism and the intractability of the violent pattern of conduct. A prospective assessment of dangerousnessensures that only offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced toan indeterminate detention. This necessarily involves the consideration of future treatment prospects. Had the prospective aspects of thedangerousness criteria been removed by the 2008 amendments, the constitutionality of the provision might have required a deeperanalysis. But that is not the case.

The sentencing judge erred in concluding otherwise. Accordingly, this Court need not revisit itsdecision in Lyons as to the constitutionality of s. 753(1). [47] A final point must be addressed. The 2008 amendments also introduced s. 753.01. The sentencing judge found thatthis provision made the s. 753(1) designation permanent and imposed new consequences on the offender. The dangerous offenderregime, however, has had permanent effect since Lyons: p. 342. The change has to do with the potential consequences of that designationas a result of s. 753.01.

That being said, the constitutionality of those consequences is not at stake in this case. Mr. Boutilier was notsentenced to an indeterminate detention on the basis of s. 753.01, but rather after a regular application for a dangerous offenderdesignation pursuant to s. 753. It would be imprudent for this Court to rule on the constitutionality of s. 753.01 without a concreteexample of its real effects. It is therefore unnecessary to consider the constitutional validity of the interaction between s. 753(1) ands. 753.01, a provision applying to later convictions of dangerous offenders. B.

Does Section 753(4.1) Lead to a Grossly Disproportionate Sentence, Contrary to

Section 12 of the Charter, by PresumptivelyImposing Indeterminate Detention and Preventing the Sentencing Judge From Imposing a Fit Sentence Consistent With the Principlesand Objectives of Sentencing? [48] The current s. 753(4.1) was introduced in 2008. This Court has not yet considered its constitutionality. It reads asfollows:

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidenceadduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (c)will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [49] Mr. Boutilier contends that s. 753(4.1) infringes s. 12 of the Charter. [50] McLachlin C.J. recently summarized the framework applicable to a claim of cruel and unusual punishment unders. 12 of the Charter: A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of theoffence and the circumstances of the offender: [R. v.] Nur [2015 SCC 15, [2015] 1 S.C.R. 773], at para. 39; R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individualbefore the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, atpara. 77. (R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 22) [51] Mr.

Boutilier argues that the reasonably foreseeable applications of s. 753(4.1) lead to grossly disproportionatesentences because the provision presumptively imposes indeterminate detention on designated offenders each time there are public safetyconcerns, even when such a sentence would be unfit in a specific case. This argument rests on two premises. First, Mr. Boutilier arguesthat s. 753(4.1) is properly read as impeding the discretion of a sentencing judge to impose a fit sentence in light of all relevant factorsand circumstances and the principles and objectives of sentencing.

Second, he says that s. 753(4.1) imposes a presumption ofindeterminate detention for designated offenders. [52] Having carefully read my colleague’s reasons, I cannot, for the reasons outlined below, agree that s. 753(4.1)imposes indeterminate detention in cases where it is grossly disproportionate to the sentence mandated by sentencing principles.

Thesentencing principles and objectives set out in the Criminal Code, including the fundamental principle of proportionality in s. 718.1, donot have constitutional status and may be limited by Parliament where necessary to achieve a valid penal purpose, so long as a sentencingjudge is not required to impose a sentence that is “grossly disproportionate” to the sentence normally mandated by ss. 718 to 718.2 of theCriminal Code: R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 71; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R.773, at paras. 40-42. In R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045, this Court referred to three factors that are useful indetermining whether punishment is “grossly disproportionate” to what would have been appropriate: “. . . whether the punishment isnecessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, and whether there exist validalternatives to the punishment imposed . . .” (p. 1074).

Considering the provision’s heightened preventive purpose, recognized bys. 718(c), as well as the sentencing judge’s duty to carefully inquire into the appropriateness of alternatives to indeterminate detention inlight of the full range of sentencing principles, I cannot conclude that s. 753(4.1) imposes punishment that is “grossly disproportionate”to the extent that Canadians would find it abhorrent or intolerable.

(1) The Sentencing Judge’s Discretion to Impose a Fit Sentence Under Section 753(4.1) [53] This Court has consistently affirmed that dangerous offender proceedings are sentencing proceedings: R. v. Steele,2014 SCC 61, [2014] 3 S.C.R. 138, at para. 40; Jones, at pp. 279-80 and 294-95; Lyons, at p. 350. Accordingly, a sentencing judge in adangerous offender proceeding must apply the sentencing principles and mandatory guidelines outlined in ss. 718 to 718.2: R. v. Johnson,2003 SCC 46, [2003] 2 S.C.R. 357, at para. 23; Neuberger, at p. 3-4.

These sections of the Criminal Code set out the purpose andobjectives of sentencing (s. 718), the fundamental principle of proportionality (s. 718.1) — “the sine qua non of a just sanction” (R. v.Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37) — and the other sentencing principles that a court “shall” consider beforeimposing any sentence on an offender (s. 718.2). An error in the application of these principles is reviewable by an appellate court: R. v.Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[54] Mr. Boutilier’s position that, under the dangerous offender scheme, a sentencing judge lacks discretion to impose anappropriate sentence in light of the principles and objectives of sentencing has no support in the jurisprudence. Appellate courts havecontinued to apply these principles under s. 753 since the 2008 amendments: R. v. Warawa, 2011 ABCA 294, 278 C.C.C. (3d) 409, atpara. 40; R. v. Osborne, 2014 MBCA 73, 314 C.C.C. (3d) 57, at paras. 90-91; R. v. Bragg, 2015 BCCA 498, 332 C.C.C. (3d) 145, atpara. 26; R. v. Smarch, 2015 YKCA 13, 374 B.C.A.C. 291, at paras. 46-47.

These sentencing principles apply to every sentencingdecision, whether made under the regular sentencing regime, the dangerous offender regime or the long-term offender regime. Oneexample is provided by Ipeelee, in which Manasie Ipeelee and Frank Ralph Ladue were sentenced under the long-term offender regime.Nevertheless, this Court reviewed the fitness of their sentence according to sentencing principles, and more specifically the principle ins. 718.2(

e) requiring judges to pay attention to the circumstances of Aboriginal offenders in sentencing proceedings: see R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. [55] Mr. Boutilier’s contention is also not supported by the principles underlying indeterminate detention. Thisexceptional sentence is not an exception to the principles of sentencing, but rather a sentence mandated by their proper application.

AsLa Forest J. explained in Lyons, preventive detention “represents a judgment that the relative importance of the objectives ofrehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention,correspondingly increased”: p. 329. To conclude that the objectives of rehabilitation and retribution are trumped by that of prevention ina given case, the sentencing judge must assess the relative importance of the sentencing objectives in that particular case. [56] Mr.

Boutilier contends that, by referring solely to the objective of public protection, the wording of s. 753(4.1)excludes other sentencing objectives and principles from the sentencing judge’s discretion. In my view, a fair reading of s. 753(4.1) doesnot result in the exclusion of these principles. Parliament is entitled to decide that protection of the public is an enhanced sentencingobjective for individuals who have been designated as dangerous. This does not mean that this objective operates to the exclusion of allothers.

It is permissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstances withoutcurtailing their ability to look at the whole picture. Emphasis on the public safety component is consistent with the fact that publicprotection is the general purpose of

Part XXIV of the Code: Steele, at para. 27. Further, because the enhanced objective of public safetyparallels the justification for imposing an indeterminate detention, such emphasis is also consistent with the principles of sentencinggenerally. [57] It follows that, if the goal of public protection could be achieved in a given case without imposing indeterminatedetention, a dangerous offender provision requiring a sentencing judge to declare an offender dangerous and then sentence him or her toan indeterminate period of detention would “overshoot the public protection purpose of the dangerous offender regime”: Johnson, atpara. 20. This accords with the principle in s. 718.2(

d) that “an offender should not be deprived of liberty, if less restrictive sanctionsmay be appropriate in the circumstances”. Even though the current sentencing mechanism for dangerous offenders differs from the onein place when Johnson was decided, the Court’s reasoning in Johnson is still applicable. Let me explain. [58] Since the 2008 amendments, indeterminate detention is no longer automatic for a dangerous offender. Rather, thissentence is only one option among others available under s. 753(4).

In lieu of an indeterminate detention, a judge may impose a sentencethat is more proportionate to the predicate offence for which the offender is being sentenced, whether it is imprisonment for a minimumof two years followed by long-term supervision — which amounts to a long-term offender sentence — or a sentence under the regularsentencing regime. The sentencing alternatives listed in s. 753(4) therefore encompass the entire spectrum of sentences contemplated bythe Criminal Code. [59] When Johnson was decided, indeterminate detention was the only sentence available for dangerous offenders unders. 753.

Nonetheless, this Court did not interpret this provision as requiring indeterminate detention for every designated offender. Itrefused to do so because this would have been “in direct conflict with the underlying principle that the sentence must be appropriate inthe circumstances of the individual case”: Johnson, at para. 24. [60] Section 753(4) and (4.1) should therefore be read as a codification of Johnson: the first subsection lists thealternatives available to a sentencing judge, while the second codifies the exercise of the sentencing judge’s discretion required byJohnson.

In order to properly exercise his or her discretion under s. 753(4), the sentencing judge must impose the least intrusive sentencerequired to achieve the primary purpose of the scheme. [61] Against this backdrop, it would strain credulity to suggest that the principles enumerated in ss. 718 to 718.2 areirrelevant to the exercise of the sentencing judge’s newly codified discretion in s. 753(4) and (4.1) when they were relevant even underthe former scheme, which imposed automatic indeterminate detention for every dangerous offender.

The 2008 amendments replacedmandatory indeterminate detention with a codification of the principle that a sentencing judge must impose a sentence that is tailored tothe specific offender and consistent with the principles of sentencing. When considered in its historical context, the current s. 753(4.1)confers a discretion to apply general sentencing principles more explicitly than the former scheme did.

It does so for the benefit of theoffender, who cannot complain of a discretion that can only operate to his or her benefit: see Lyons, at pp. 348-49. [62] Further, nothing in the wording of s. 753(4.1) removes the obligation incumbent on a sentencing judge to considerall sentencing principles in order to choose a sentence that is fit for a specific offender. [63] For all these reasons, an offender’s moral culpability, the seriousness of the offence, mitigating factors, andprinciples developed for Indigenous offenders are each part of the sentencing process under the dangerous offender scheme.

Each ofthese considerations is relevant to deciding whether or not a lesser sentence would sufficiently protect the public. Mr. Boutilier’ssuggestion to the contrary has been repeatedly rejected by this Court in relation to any of the Criminal Code’s sentencing regimes and, ineffect, seeks to read a prohibition into s. 753(4.1) where none exists.

(2) The Question of the Presumption of an Indeterminate Period of Detention Under Section 753(4.1) [64] Section 753(4.1) states that a judge “shall” impose an indeterminate sentence unless he or she is satisfied on theevidence “that there is a reasonable expectation that a lesser measure . . . will adequately protect the public against the commission by the

offender of murder or a serious personal injury offence”. Mr. Boutilier contends that this provision enacts a presumption that an indeterminate sentence is a fit sentence for a dangerous offender and imposes a burden on the offender to adduce evidence to demonstrate “a reasonable expectation” that a lesser measure will adequately protect the public. He also argues that this burden extends beyond the one envisioned by this Court in Johnson .

Again, I disagree . [ 65 ] Section 753(4.1) guides the discretion of the judge, who ultimately must determine the fittest sentence in a given case based on the evidence adduced during the sentencing hearing. This Court in Johnson stated that the “sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level”: para. 44.

Again, s. 753(4.1) is simply a codification of the exercise of discretion required by Johnson in light of the regime’s general purpose of public protection in dealing with offenders presenting a very high likelihood of harmful recidivism. [ 66 ] This

interpretation of s. 753(4.1) is consistent with s. 718.3: 718.3

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is , subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence .

(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment . [ 67 ] It is also consistent with this Court’s

interpretation of s. 742.1 — a provision requiring judges to be “satisfied that the service of the sentence in the community would not endanger the safety of the community” before imposing a conditional sentence. As Lamer C.J. explained: The wording used in s. 742.1 does not attribute to either party the onus of establishing that the offender should or should not receive a conditional sentence. To inform his or her decision about the appropriate sentence, the judge can take into consideration all the evidence, no matter who adduces it ([ R. v. ] Ursel [ (1997), 96 B.C.A.C. 241 ], at pp. 264-65 and 287).

In matters of sentencing, while each party is expected to establish elements in support of its position as to the appropriate sentence that should be imposed, the ultimate decision as to what constitutes the best disposition is left to the discretion of the sentencing judge . [Emphasis added.] ( R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61, at paras. 120-21 ) [ 68 ] Under s. 753(4.1), the sentencing judge is under the obligation to conduct a “thorough inquiry” into the possibility of control in the community: Johnson , at para. 50 .

The judge considers all the evidence presented during the hearing in order to determine the fittest sentence for the offender: The judge should . . . take into account all the evidence available before making a determination, which will inevitably require a thorough investigation.

Once such an investigation has been conducted, it will be up to the judge to determine the sentence; there is no obligation on any of the parties to prove on any standard the adequate sentence one way or another. (Neuberger, at p. 4-4.1; see also p. 10-10.) [ 69 ] In other words, s. 753(4.1) provides guidance on how a sentencing judge can properly exercise his or her discretion in accordance with the applicable objectives and principles of sentencing.

As explained above, it is permissible for Parliament to guide the courts to emphasize certain sentencing principles in certain circumstances without curtailing their discretion. Once the sentencing judge has exhausted the least coercive sentencing options to address the question of risk based on the evidence, indeterminate detention in a penitentiary is the last option. [ 70 ] The framework a sentencing judge should adopt in exercising his or her discretion under s. 753(4.1) has been aptly explained by Justice Tuck-Jackson of the Ontario Court of Justice: R. v. Crowe , No. 10-10013990, March 22, 2017.

First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed.

If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is “yes”, then that sentence must be imposed. If the answer is “no”, then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time.

Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required. [ 71 ] In sum, Mr. Boutilier’s s. 12 argument is grounded in an erroneous reading of the impugned provision. Properly read and applied, s. 753(4.1) does not impose an onus, a rebuttable presumption, or mandatory sanctioning. Nor does it prevent a sentencing judge from considering sentencing objectives and principles. Every sentence must be imposed after an individualized assessment of all of

the relevant factors and circumstances. Seen in this way, s. 753(4.1) will not result in grossly disproportionate sentences or in the imposition of a detention of indeterminate duration in cases where such a sentence is unfit. The sentencing judge and the British Columbia Court of Appeal therefore rightly rejected Mr. Boutilier’s position on this point. C. Is Section 753(4.1) Overbroad in Violation of

Section 7 of the Charter Because It Applies to Offenders That Could Have Been Monitored Under the Long-Term Offender Scheme? [ 72 ] Mr. Boutilier also argues that s. 753(4.1) is overbroad in a manner contrary to s. 7 on the basis that some offenders who are designated as dangerous meet the statutory criteria for a long-term offender designation under s. 753.1. He argues that the provision is overbroad because these offenders, who could have been properly monitored under the long-term offender regime, face the risk of an indeterminate detention under s. 753(4.1).

He argues that an anomaly flows from the fact that, under the dangerous offender regime, offenders must satisfy the higher standard of a “reasonable expectation” of control to obtain a lower sentence, whereas under the long-term offender regime, they would need to meet the lower standard of a “reasonable possibility” of control. As such, Mr.

Boutilier contends that the risk of indeterminate detention under s. 753(4) and (4.1) depends only on whether the Crown uses its discretion to place the offender within the dangerous offender scheme or the long-term offender stream. [ 73 ] The criteria to be designated as a long-term offender are in s. 753.1(1): 753.1

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. [ 74 ] While it is true that this Court in Johnson found that “[a]lmost every offender who satisfies the dangerous offender criteria will satisfy the first two criteria in the long-term offender provisions” (para. 31) and that, in some cases, an offender designated as dangerous may establish “a reasonable possibility of eventual control” so as to fall within the long-term offender regime, this is of no relevance to the constitutionality of s. 753(4.1). [ 75 ] Undoubtedly, the dangerous offender designation criteria are more onerous than the long-term offender criteria.

In particular, under s. 753(1), the sentencing judge must be satisfied that “the offender constitutes a threat to the life, safety or physical or mental well-being of other persons”, whereas under s. 753.1, the sentencing judge must merely be satisfied that “there is a substantial risk that the offender will reoffend”. As explained above, when read properly, s. 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 .

It therefore cannot be said that both regimes target the same offenders. [ 76 ] Furthermore, as I have already concluded, 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.

Indeed, 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. [ 77 ] Imposing indeterminate detention where the sentencing judge is not satisfied that there is a “reasonable expectation” that a lesser sentence “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence ” is a rational means to achieve the public protection objective of

Part XXIV of the Criminal Code insofar as such detention is limited to habitual criminals who pose a tremendous risk to public safety. A rigorous application of the designation criteria under s. 753(1) ensures that the provision does not overreach by capturing offenders that should not face the risk of a sentence of indeterminate detention. D. Did the Sentencing Judge Err by Sentencing Mr. Boutilier to an Indeterminate Period of Detention? [ 78 ] Mr. Boutilier pleaded guilty to six criminal charges arising out of the robbery of a pharmacy with an imitation firearm and an ensuing car chase.

He was 41 years old at the time of the predicate offences and 46 at the time of sentencing. [ 79 ] His criminal record is lengthy, and he has spent the majority of his life incarcerated for similar robbery-related offences committed in Seattle in 1988 and in Brantford in 2000-2001. His adult record, excluding the offences for which the sentencing judge sentenced him, includes 24 convictions for several instances of breaking and entering and other property-related offences, robberies, conspiracy to commit robbery, escape from lawful custody, assault, assault with a weapon, and kidnapping. [ 80 ] Mr.

Boutilier was assessed by Dr. Schweighofer, a forensic psychologist who found that his tendency to commit dangerous criminal offences flowed from his drug addictions. On this basis, Dr. Schweighofer found that he was very likely to continue committing criminal offences to fund his drug use in the future. He explained that Mr. Boutilier had had little success with the wide variety of drug treatment programs he had been through in his life, with the exception of a program at a halfway house in Vancouver (Belkin House) where he had stayed for several months in 2007-2008, to which he had responded well.

[81] Whi

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