Supreme Court decision will mean fewer dangerous offender applications, says Yukon legal aid society

For the first time in the Yukon, the territory's legal aid society has played a role in a Supreme Court of Canada charter challenge.

The Yukon Legal Services Society was given intervenor status on a case out of B.C. — meaning it was allowed to participate in the proceedings — in Canada's top court last year. The case, R v. Boutilier, focused on whether two aspects of the country's dangerous offender legislation violate the Charter of Rights and Freedoms.

Donald Boutilier was labelled a dangerous offender and given an indeterminate prison sentence after pleading guilty in May 2012 to six offences, including robbery and assault with a weapon.

Under the Criminal Code, Crown prosecutors can apply for certain offenders to be declared dangerous offenders. If the person meets the criteria, the judge is obligated to impose an indeterminate prison sentence, unless the defence can prove the offender's risk to the public can be managed by other means.

Changes made in 2008 to classification and sentencing of dangerous offenders generally made it easier to apply the law to anyone with multiple convictions.

In his appeal, Boutilier argued those changes violate the Charter of Rights and Freedoms, because they removed judicial discretion and became too broad.

'Too many people are being designated'

In Yukon, Vincent Larochelle, a public defender with Yukon Legal Services Society, had been considering mounting a similar charter challenge of his own.

He believed the criteria used to identify dangerous offenders was too broad, and took issue with the fact the judge has no discretion, and must give the designation if the criteria are met.

According to Larochelle there are two problems with this.

"The first is too many people are being designated, and the second is for those people who are designated and shouldn't be, it then leads to a sentencing regime which is too harsh," he said.

Larochelle pointed to other complications. For instance, once somebody is designated a dangerous offender, they need to convince a judge the community they reside in has adequate services to control him or her.

"If you're in Montreal, Vancouver, Toronto, there are all sorts of resources at your disposal: professionals, parole officers, programming," he said. 

"Not so much in the Yukon — if you're from Ross River it's even more difficult to prove to the court the resources exist in the community to make sure you're not a danger."

While researching case law for his own charter challenge, he discovered R v. Boutilier was being heard by the Supreme Court.

"Why not skip the queue and go right up to the top?" he thought.

Larochelle presented those arguments to the Supreme Court in May on behalf of the legal aid society. The court issued its ruling on Dec. 21.

Ruling provides more direction to judges

Eight out of nine justices found the Criminal Code's provisions to designate and sentence dangerous offenders do not violate the charter, but provided some direction about the amount of discretion a judge has.

In its majority decision, the court found a sentencing judge must be convinced that an offender's dangerous behaviour is "intractable" and "unable to surmount." The judge must consider whether that offender is treatable before labelling them a dangerous offender, and the court ruled the judge still can exercise his or her discretion.

The court also found a sentencing judge isn't purely limited to indeterminate sentences. It's simply one of a number of other sentencing options that may be "more proportionate" to the offence in question.

While the Supreme Court may have ruled against his arguments, Larochelle still considers the judgment a win.

"I think (they) made quite clear this is a very important step in the sentencing process, and only a very narrow group of offenders should be targeted by this (designation)," he said.

"I think we're going to see a reduction in the number of designations and applications in the Yukon."

'The Supreme Court of Canada only knows what the lawyers bring to its attention'

The ruling also underscores the importance of participating at even the top-most level of the justice system, says Larochelle.

"We must remember the Supreme Court of Canada only knows what the lawyers bring to its attention. It's a very lofty place," he said.

"They don't necessarily know and understand the realities of Northern and rural communities. So it's important for lawyers and organizations from across the country to bring that to their attention."

Supreme Court Justice Andromache Karakatsanis was the one judge to offer a dissenting opinion, and while Larochelle doesn't want to take all the credit, he believes the legal society's argument played a role in that.

"Justice Karakatsanis basically agreed with some of the submissions presented on behalf of [the legal society]," he said. "That was just one judge, of course, but if it had been five? Who knows?"