The Conduct of an Appeal Blog

R. v. Boutilier: Crown’s Right to Appeal the Constitutional Invalidity of Dangerous Offender Provisions of the Criminal Code

Jul 7, 2016 5 MIN READ
Mark A. Gelowitz

Partner, Disputes, Toronto

In R v. Boutilier, the British Columbia Court of Appeal concluded that the Crown has a right, under s. 759(2) of the Criminal Code, to appeal final decisions made in dangerous offender proceedings under the Code’s Part XXIV, including a decision holding that s. 753(1) is constitutionally invalid. In doing so, the Court dismissed the respondent’s application, which sought to quash the Crown appeal on the basis that the Crown had no statutory right to appeal. Justice Groberman’s concurrence additionally held that the Crown was entitled to appeal the constitutional invalidity of the provision, under British Columbia’s Court of Appeal Act, through civil proceedings, although the other Justices did not weigh in on this question.


The Crown sought to have the respondent designated a dangerous offender under Part XXIV of the Criminal Code. While British Columbia Supreme Court declared that s. 753(1) of that Part of the Code was constitutionally invalid, it suspended the declaration for a year, refused to grant the respondent a constitutional exemption, designated him a dangerous offender, and sentenced him with indeterminate incarceration. The Crown brought a Notice of Appeal, pursuant to s. 759(2) of the Code, which enables rights of appeal under Part XXIV, seeking appeal of the declaration of s. 753(1)’s constitutional invalidity.

The respondent, arguing that the Crown is not entitled to a statutory right of appeal under s. 759(2), brought an application to quash the Crown’s Notice of Appeal:

[13]        Mr. Boutilier’s application raises two issues:

  1. a) Is the Crown entitled to appeal the declaration of constitutional invalidity when it succeeded in obtaining its ultimate objective of having Mr. Boutilier designated a dangerous offender under Part XXIV?
  2. b) Does s. 759(2) provide a statutory right of appeal from the declaration of constitutional invalidity?

The respondent maintained that the Crown’s pathways to appeal were limited to: (i) raising the constitutional ruling in response to the respondent’s appeal of his dangerous offender designation and his sentence; or (ii) seeking leave to appeal directly to the Supreme Court of Canada under s. 40(1) of the Supreme Court Act.


The British Columbia Court of Appeal agreed that the two avenues to appealing the constitutional validity of s. 753(1) as outlined by the respondent were open to the Crown. However, the Court of Appeal disagreed that they were the only options for appeal available, finding that s. 759(2) entitled the Crown to a direct right of appeal. Justice Neilson’s reasons noted the practical problems of accepting the respondent’s contention that the Crown’s appeal options were limited:

[37]        I agree with Mr. Boutilier that the Crown is entitled to raise the constitutional validity of s. 753(1) in its capacity as the respondent to his appeal. A respondent may raise any argument that supports the order of the court below: Keegstra at 396. I see no reason why this would not apply to the Crown’s constitutional argument here. A reversal of the sentencing judge’s declaration of constitutional invalidity would lead to the same result: the imposition of an indeterminate sentence on Mr. Boutilier as a dangerous offender. This option is unsatisfactory, however, as the Crown’s right of appeal remains at the mercy of Mr. Boutilier. Should he abandon his appeal, the Crown’s appeal will also come to an end.

[38]        It is common ground that the Crown may avail itself of s. 40(1) of the Supreme Court Act and the “dual procedure” approach if it has no other avenue to appeal the declaration of constitutional invalidity. This too is unsatisfactory from the Crown’s perspective, however, as there is no certainty it will obtain leave to appeal. As well, the inconvenience and inefficiency of bifurcating the parties’ appeals is evident.

The Court of Appeal noted that while the determinations of “culpability and constitutionality” arose from the same proceedings, they are two separate and distinct rulings. Thus, the declaration of constitutional invalidity was a final order – and not an interlocutory order, as the respondent argued – in the proceeding to determine s. 753(1)’s constitutional validity, and was binding on the Crown and other trial courts in British Columbia. Similarly, the respondent’s argument that the Crown was precluded from appealing because it “won” in the proceedings below was rejected, as the Crown had “lost” in the proceeding over constitutional validity.

The final order of constitutional validity was determined by the Court of Appeal to be a “decision made under this Part” (i.e. Part XXIV of the Code), thus granting the Crown a right of appeal under s. 759(2):

[49]        An assessment of constitutional validity is thus necessarily and integrally related to the impugned provision and its legislative context. This proceeding was initiated and prosecuted under Part XXIV of the Criminal Code. Section 753(1), the provision under review, lies at the core of Part XXIV, and its constitutional validity is fundamental to the legitimacy of dangerous offender proceedings. Despite the two-pronged analysis described in Laba, the underlying proceeding in this case remains a proceeding under Part XXIV of the Criminal Code.

[50]        I subscribe to the view of the Court of Appeal in Ciarniello that appeal rights should not be interpreted in “an unduly restrictive or technical manner”, and that it is in the interests of justice to have all appeals relating to the same issue and proceeding brought at the same time before the same court, to the extent that the statutory language permits this.

[51]        In that context, I acknowledge that the phrase “a decision under this Part” in s. 759(2) is open to different interpretations, but I am persuaded that it may properly be interpreted broadly as “a final decision made in proceedings under this Part”. To adopt Chief Justice Lamer’s terminology in Laba at 982, the declaration of constitutional invalidity of s. 753(1) can and should be “piggybacked” onto appeal proceedings permitted by Part XXIV of the Criminal Code.