Summary

37168

Donald Joseph Boutilier v. Her Majesty the Queen

(British Columbia) (Criminal) (By Leave)

Keywords

Canadian charter (Criminal) - Right to life, liberty and security of person, Cruel and unusual treatment or punishment (s. 12).

Summary

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Charter of Rights and Freedoms - Right to life, liberty and security of the person - Cruel and unusual punishment - Dangerous offender designation and sentencing provisions - Constitutionality of ss. 753(1) and 753(4.1) of the Criminal Code, R.S.C. 1985, c. C-46 - Whether the designation criteria in s. 753(1) of the Criminal Code is overbroad under s. 7 of the Charter - Whether an offender’s future treatment prospects are to be considered at the “designation phase” in s. 753(1) of the Criminal Code - Whether s. 753(4.1) of the Criminal Code is overbroad under s. 7 of the Charter or grossly disproportionate under s. 12 of the Charter - Charter ss. 7 and 12.

The Crown brought a dangerous offender application. Pursuant to s. 752.1 of the Criminal Code, R.S.C. 1985, c. C-46, Mr. Boutilier was remanded for an assessment. After the evidence in the dangerous offender hearing was completed, and after the Crown had completed its submissions, counsel for Mr. Boutilier served a notice of constitutional question in relation to several amendments to s. 753 of the Criminal Code. The judge concluded that an aspect of s. 753(1) of the Code infringed s. 7 of the Charter and could not be saved under s. 1 of the Charter. Accordingly, s. 753(1) of the Code was declared to be inconsistent with the Charter and hence void. In consideration of the interests at stake, the judge held that this declaration of invalidity would be suspended for one year. The judge also designated Mr. Boutilier a dangerous offender and sentenced him to an indeterminate prison term. The Crown appealed the declaration of constitutional invalidity with respect to s. 753(1). Mr. Boutilier appealed the dismissal of his application to have s. 753(4.1) declared constitutionally invalid as well as his designation as a dangerous offender and indeterminate sentence. The Crown’s appeal was allowed. Mr. Boutilier’s appeal was dismissed.