Mr. Warren was sentenced as a dangerous offender, meaning he was given an indefinite federal sentence of incarceration. Given his disabilities, and based on his previous experiences in federal custody, Mr. Warren argued that maintaining him in a federal prison would violate his right to be free from cruel and unusual punishment. The sentencing judge accepted his argument, and ordered that he be maintained in a hospital setting instead, and also that the Court would retain supervisory jurisdiction over his incarceration.

On appeal, the government argues that the judge erred in finding an anticipatory breach of Charter rights. In addition, they say that both the “structural” order directing how Mr. Warren should be incarcerated and the “supervisory” order giving the court power to review how the structural order is carried out go beyond the proper role of a sentencing court. They say that the Court should only make a declaration that Mr. Warren’s rights would be violated, and stop at that.

BCCLA is intervening to provide submissions about the scope and application of structural and supervisory orders in the criminal context. There is no principled reason that these types of orders can’t be used in criminal law, such as sentencing decisions, and in fact they have been in the past. One example is our own challenge to administrative segregation in federal prisons, where the BC Court of Appeal made a number of structural and supervisory orders throughout the case.