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Attempting to Solve a Nonexistent Problem:

Constitutional Implications of the Not Criminally Responsible Reform Act

Natalia Sudeyko

Law 304 – Criminal Law Practice

Professors Ferguson and Lawrence

March 11, 2016

This is a Draft Paper. It is made available to Community CLE registrants. This paper should not be distributed to others without

the author’s express opinion.

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Attempting to Solve a Nonexistent Problem:

Constitutional Implications of the Not Criminally Responsible Reform Act

Introduction and Context

The Not Criminally Responsible Reform Act1 (Act) amends Part XX.1 of the Criminal Code2

(Code); in particular those provisions which deal with the powers and responsibilities of review boards

when making a disposition for an accused who has been found not-criminally-responsible-by-reason-

of-mental-disorder (“NCRMD”; “NCR”). The amendments brought about by the Act had been

contemplated by the Conservative government for several years. An earlier version, Bill C-54, died

when Parliament was prorogued in September 2013.3 It was later revived as Bill C-14, coming into

force on July 11, 2014. According to a statement of former Attorney General Peter MacKay, the Act

was designed to “put public safety first; protect Canadians from not-criminally-responsible accused

designated as high-risk; and enhance the rights of victims”.4

Bill C-14 and its predecessor Bill C-54 were developed in the wake of two extremely high-

profile cases involving mentally disordered individuals. Allan Schoenborn killed his three young

children in April 2008, in Merritt, B.C. The tragic killings and the ensuing manhunt and capture of Mr.

Schoenborn received widespread media attention. Only three months later, Vincent Li attacked and

killed a fellow passenger on a Greyhound bus while in the throes of a psychotic break. He beheaded

him and consumed parts of the body while terrified passengers watched from the side of the road,

unable to assist. The bizarre and brutal slaying garnered international attention and furthered the public

fear of mentally disordered persons. Both Mr. Schoenborn and Mr. Li were ultimately found not-

1 Not Criminally Responsible Reform Act, SC 2014 c-6. [Act]2 Criminal Code, RSC 1985 c-46. [Code]3 Tanya Dupuis, “Legislative Summary of Bill C-14” (14 Jan 2014), online: Parliament of Canada,

<http://www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?Language=E&ls=C14&Mode=1&Parl=41&Ses=2&source=library_prb> .

4 Hon. Peter MacKay, “Quotes”, News Release – Coming into Force of the Not Criminally Responsible Reform Act (11 July 2014), online: Government of Canada <http://news.gc.ca/web/article-en.do?nid=867529>.

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criminally-responsible-by-reason-of-mental-disorder, pursuant to section 16 of the Code. The

Conservative government wasted little time transforming these individuals into “poster boys”5 who

embodied the so-called dangers of not-criminally-responsible accused persons, even describing Mr.

Schoenborn as a “criminal” in an election campaign advertisement which aired in October 2015.6

This paper will consider the constitutional implications of the Not Criminally Responsible

Reform Act, as well as the ways in which courts and review boards across Canada have responded to

the amendments made by the Act. It will begin with a brief overview of these amendments. It will then

consider whether any aspects of the Act violate sections 7, 11(i), or 12 of the Canadian Charter of

Rights and Freedoms7 (Charter). It will explore how courts and review boards have interpreted the Act

and the various policy issues raised by the legislation. Finally, this paper will consider the impacts of

the Act on not-criminally-responsible accused persons, their counsel, and the general public.

Overview of amendments

The amendments brought about by the Act can be roughly grouped into three categories:

changes of language and terminology, enhancements to victims' rights, and the introduction of the

“high-risk accused” designation and related provisions. These changes are briefly outlined below.

The Act both adds new phrases to the Code and defines existing ones. First, the Act amends

section 672.54 of the Code so that it explicitly states that public safety is the “paramount consideration”

of the court or review board when making a disposition. There is some debate over whether the

insertion of this phrase actually changes the law or merely codifies existing practices of the court and

review boards; this will be discussed in a separate section of this paper. Second, the Act defines the

5 Peter Wilson, QC (Lecture delivered at the Faculty of Law, University of Victoria, 25 Jan 2016), [unpublished].6 Tamsyn Burgmann, “Harper’s election ad about mentally ill father interferes with justice system: lawyers”, The Globe

and Mail (10 Oct 2015), online: The Globe and Mail, <http://www.theglobeandmail.com/news/politics/harpers-election-ad-about-mentally-ill-father-interferes-with-justice-system-lawyers/article26765550/>.

7 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [Charter]

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existing phrase, “significant threat to the safety of the public”.8 In a new Code section, 672.5401, this is

set out as follows:

“...a risk of serious physical or psychological harm to members of the public —   including any victim of or witness to the offence, or any person under the age of 18 years   — resulting from conduct that is criminal in nature but not necessarily   violent.”

Throughout this paper, I will refer to these changes either by section number or collectively as the

“terminology amendments”.

Other amendments deal with the rights and participation of the victim(s) in the review board

process. While the review board had previously been under an obligation to consider the contents of a

victim impact statement to the extent it is relevant in making a disposition, they must now also do so in

determining whether to recommend a revocation of high-risk accused designation to the court.9 The

court must also consider victim impact statements in deciding whether to designate an individual as a

high-risk accused.10 Section 672.542 requires the court or review board to consider whether it is

“desirable” to include a condition in their disposition that the accused abstain from communicating

with the victim and/or witnesses, as well as consider implementing any other conditions “that the court

or Review Board considers necessary to ensure the safety and security of those persons.” Finally, the

court or review board must provide notice of an NCR accused person's intended place of residence to

the victim upon their request.11 Throughout this paper, I will refer to these changes either by section

number or collectively as the “victims' rights amendments”.

Section 672.64 is a new provision added to the Code as a result of the Act. It is the most

significant of the amendments, as it allows the court to designate an NCR individual as a “high-risk

accused”. High-risk accused persons cannot be granted absolute or conditional discharges by a review

8 Code, supra note 2, s 672.54.9 Ibid, s 672.541(a).10 Ibid, ss 672.541(b); 672.541(c).11 Ibid, s 672.5(5.2)

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board, and are unable to obtain escorted community access unless it is for medically necessary

purposes.12 A high-risk accused designation can only be revoked by a court upon the recommendation

of a review board. The changes also permits a review board to extend the review period for dispositions

of high-risk accused from one year to a maximum of three years.13

Sections 672.64(1) and (2) set out criteria for determining whether an accused should be

deemed high-risk. In order to make this designation, the court must be

(a) satisfied that there is a substantial likelihood that the accused will use violence that could

endanger the life or safety of another person; or

(b) of the opinion that the acts that constitute the offence were of such a brutal nature as to

indicate a risk of grave physical or psychological harm to another person.

They must consider all relevant evidence, including the nature and circumstances of the offence, any

patterns of repetitive behaviour related to the offence, the accused's current mental condition, the

expected course of treatment and the accused's willingness to comply with treatment, and expert

opinions.

Constitutional implications of the Not Criminally Responsible Reform Act

The disposition provisions in accordance with Part XX.1 of the Code serve the “twin goals” of

protecting the public and treating mentally disordered accused fairly.14 They were subject to a

legislative overhaul in 1992, after the Supreme Court of Canada declared the previous system of

automatic detention of NCR accused unconstitutional in R v Swain.15 Amendments to Part XX.1 were

made in response to the Court's remarks in that case, and incorporate the minimal constitutional

requirements set out in the Swain decision. It is not without risk for Parliament to deviate from those

requirements; yet they arguably did just that with the passage of the Act.16 The following considers

12 Ibid, s 672.64(3)13 Ibid, s 672.81(1.32)14 Winko v British Columbia (Forensic Psychiatric Facility), [1999] 2 SCR 625 at para 20. [Winko] 15 R v Swain, [1991] 1 SCR 933. [Swain] 16 Justin Ling, “The Not Criminally Responsible Reform Act”, Canadian Bar Association, The National Magazine (11

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whether the most recent changes to the disposition scheme in Part XX.1, brought into effect on the

passage of the Act, violate sections 7, 11(i), and 12 of the Charter of Rights and Freedoms.

A. Section 7 of the Charter

i) Overbreadth

It is arguable that s. 672.5401, which defines the term “significant threat”, is unconstitutional

because the definition provided is overly broad. It is well-established that, by reason of section 7,

Parliament cannot use means which are broader than is necessary to accomplish what is otherwise a

valid legislative objective.17 If they do, then the principles of fundamental justice have been violated

because Charter rights have been limited for no reason.

The definition imposed by the Act is reproduced below:

“...a risk of serious physical or psychological harm to members of the public —   including any victim of or witness to the offence, or any person under the age of 18 years   — resulting from conduct that is criminal in nature but not necessarily   violent.”

This language is very similar to the definition of “significant threat” which was developed by the Court

in Winko v British Columbia (Forensic Psychiatric Institute).18 There is one difference, however:

whereas the Winko definition requires “real risk”,19 the Act definition requires only “risk”. Does the Act

codify the existing case law, or does the removal of the word “real” fundamentally change the test for

detention from requiring actual risk to a less onerous risk simpliciter?20 If the latter is true, then there

may be a compelling argument that s. 672.5401 is unconstitutional due to overbreadth.

Lamer C.J. (as he then was) wrote in R v Heywood, “Where legislation limits the liberty of an

individual in order to protect the public, that limitation should not go beyond what is necessary to

March 2014), online: The National Magazine, <http://www.nationalmagazine.ca/Articles/March-2014-WEB/The-Not-Criminally-Responsible-Act.asp x>. [Ling]

17 R v Heywood, [1994] 3 SCR 761 at para 6. [Heywood] 18 Winko, supra note 14 at para 62.19 Ibid.20 Stephanie Yuen, “Unnecessary, Counterproductive, Unconstitutional. An Examination of Bill C-54: The Not CriminallyResponsible Reform Act”. Master's Thesis, University of Toronto Faculty of Laws, 2013, at p 41.

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accomplish that goal.”21 The question becomes, then, whether it is necessary that NCR accused persons

be detained when there is only a risk simpliciter, and not a “real risk”, of serious harm to the public, in

order to achieve the legislative objective of protecting the public.

It is certainly possible that by removing the word “real”, Parliament has in fact changed the

content of the law. While “real” is not a particularly useful adjective to describe an abstract concept

such as risk, the court in Winko consistently used the word “real” interchangeably with the word

“significant”.22 It is likely that “real risk” refers to “significant risk”, and therefore “risk” alone denotes

something less than significant. If this is true, then the definition set out in s. 672.5401 probably falls

below the minimum constitutional threshhold set out in Winko.

A contrary interpretation, however, argues that Parliament simply erased an adjective it deemed

meaningless. Review boards appear to have adopted this interpretation, treating section 672.5404 as an

example of mere codification. In Re: Lacerte (aka Mazzei),23 the British Columbia Review Board stated

at paragraph 46:

“The legal question of whether the reference to the words “a risk” set out in the new statutory definition of “significant threat” contained in s. 672.5401 of the Criminal Code, in place of the Supreme Court’s adoption of the words “a significant risk”, requires us to refuse an absolute discharge to an accused who does not represent a significant risk of harm, was decided by this panel of the Board in Bart Davis, BCRB July 15, 2014. We concluded that an expansive interpretation of the term “significant threat” in s. 672.5401, which would violate the Charter, is not required by the language of that section and that, on the authority of Winko, the words “a risk” in s.672.5401 are properly interpreted as equivalent to “a significant risk”.”

The second issue in relation to overbreadth concerns the changes made to s. 672.54 of the Code. That

provision formerly stated:

“Where a court or Review Board makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it shall, taking into consideration the need to protect the public from dangerouspersons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:...” (emphasis mine)

21 Heywood, supra note 17 at para 6.22 Winko, supra note 14.23 Re: Lacerte (aka Mazzei), BCRB July 15, 2014.

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As a result of the Act, the phrase “least onerous and least restrictive to the accused” has been replaced

with “necessary and appropriate in the circumstances”.24 It is arguable that by changing these words,

Parliament has removed the requirement for courts and review boards to make the disposition which is

the least restrictive sanction. If this is so, then s. 672.54 would be overbroad because it would

potentially allow a court to impose a disposition which restricts the accused's freedoms more than is

actually required to achieve the objectives set out in the provision. The legislation could permit the

court or review board to “go beyond what is necessary to accomplish that goal”.25

Courts and review boards have recognized this concern and, rather than finding the legislation

unconstitutional, have simply interpreted the provision in a manner which they perceive to be

consistent with the Charter. In Re: Baranyais,26 the B.C. Review Board found that the amendment was

not intended to remove the requirement that courts impose the least restrictive disposition. At paragraph

88, the Board held:

“It appears clear to us that any interpretation of the new legislation that does notbalance the rights of the accused with the safety of the public will not survive Charterchallenge. Thus it is self-evident that the Board should interpret the new provisions in theNot Criminally Responsible Reform Act in a manner that complies with the Charter. This approach leaves little room for a more restrictive treatment of an NCRMD accused.”

The B.C. Review Board acknowledged in this case that it does not intend to alter its practices as a

result of the new legislation.

ii) Arbitrariness

A second s. 7 argument engages a different principle of fundamental justice: the principle that

laws must not be arbitrary or irrational.27 Arbitrariness means that the law has no connection to or is

inconsistent with its object. As a unanimous Supreme Court wrote in Carter v Canada (Attorney

General) at paragraph 83:

24 Code, supra note 2, s 672.54.25 Heywood, supra note 17 at para 8.26 Re: Baranyais, BCRB Sept 11, 2014.27 R v Malmo-Levine, 2003 SCC 74 at para 135. [Malmo-Levine]

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“The principle of fundamental justice that forbids arbitrariness targets the situation where there isno rational connection between the object of the law and the limit it imposes on life, liberty or security of the person: Bedford, at para. 111. An arbitrary law is one that is not capable of fulfilling its objectives. It exacts a constitutional price in terms of rights, without furthering the public good that is said to be the object of the law.”28

Arguably, the high-risk accused provisions are arbitrary because they mandate that the court consider

certain criteria in determining whether an accused receive the designation, and those criteria are

unconnected to the actual risk that the provisions are designed to reduce. As noted above, the Act

creates a new designation which the court can impose on certain NCR accused. Section 672.64(1)

states:

“On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be a high-risk accused if the accused has been found not-criminally-responsible on account of mental disorder for a serious personal injury offence, as defined in subsection 672.81(1.3), the accused was 18 years of age or more at the time of the commission of the offence and•(a) the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person; or•(b) the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.” (emphasis mine).

Subsection (2) sets out a list of factors that the court must consider in making the determination.

Subsection (3) requires that the court, upon designating an accused as high-risk, make a disposition that

results in the detention of the accused in hospital. It removes their discretion to make any disposition

which includes conditions allowing the accused to leave the hospital, unlesss necessary for the

purposes of treatment and then only with an escort and a safety plan in place. The period between

reviews of the disposition can also be extended from a maximum of 12 months to a maximum of 36

months.29 Furthermore, the designation can only be revoked by a court upon recommendation of a

review board, not by a review board itself.

The first step in the s. 7 analysis is determining whether a law limits the right to life, liberty, or

28 Carter v Canada (Attorney General), 2015 SCC 5. [Carter]29 Code, supra note 2, s 672.81(1.32).

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security of the person.30 Clearly, the high-risk accused provisions limit the individual's right to liberty

because they require his or her detention if designated high-risk. The court has consistently recognized

that the threat of imprisonment constitutes an infringement of the right to liberty.31 The next step in the

analysis is determining whether this limit is imposed in accordance with the principles of fundamental

justice. If a law is unduly vague,32 overly broad;33 grossly disproportionate,34 or arbitrary,35 then it will

not be imposed in accordance with the principles of fundamental justice.

The constitutional problem with the high-risk accused provisions lies in s. 672.64(1). This

section sets out the test for designating an NCR accused as high-risk. The court can impose the

designation if they are satisfied that there is a substantial likelihood that the accused will use violence

that could endanger the life or safety of another person; or if they are “of the opinion that the acts that

constitute the offence were of such a brutal nature as to indicate a risk of grave physical or

psychological harm to another person.”36 This use of “or” instead of “and” is important: the court can

make the designation pursuant to either ss. 672.64(1)(a) or (b). Section 672.64(1)(a) is likely

constitutional; it does not appear to offend the Charter. However, s. 672.64(1)(b) is problematic. It

establishes criteria which allow the court to designate an NCR accused as high-risk based on the

“brutality” of the index offence for which they are being disposed.

This provision necessarily presumes a nexus between offence severity and likelihood of violent

recidivism. If this connection does in fact exist, then the provision is both logically sound and

constitutionally valid. If, however, there is no correlation between the brutality of the index offence and

the likelihood of violent recidivism, then the provision does not serve its objective and instead limits

30 R v Smith, 2015 SCC 34 at para 16. [Smith]31 Malmo-Levine, supra note 27 at para 222; Smith, supra note 30 at para 17. 32 R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606. 33 Heywood, supra note 17.34 Canada (Attorney General) v Bedford, 2013 SCC 73 at p 1104 (headnote). [Bedford]35 Malmo-Levine, supra note 27 at para 90.36 Code, supra note 2, s 672.64(1)(b).

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the NCR accused's rights for no reason.

Of note in this regard are the many studies conducted in Canada and abroad which examine the

recidivism rates of both mentally disordered accused persons in the NCRMD stream and offenders with

mental illness who have been sentenced to incarceration. These studies indicate that NCR accused are

less likely to reoffend than both mentally ill offenders in the prison system and non-mentally ill

offenders more generally.37 Furthermore, NCR accused who have committed a serious violent index

offence (including murder and sexual offences) are statistically less likely to reoffend than individuals

who committed less serious or non-violent offences.38

The National Trajectory Project39 followed 1800 NCRMD individuals over a 3-8 year period in

Quebec, Ontario, and British Columbia, all of whom received their verdicts between 2000 and 2005.

The Project found that the recidivism rate for NCR accused who had committed a severe offence was

6.1% - while the recidivism rate was more than double that for NCR accused who had committed non-

severe offences against the persons (such as uttering threats or assault) or offences not against the

person (such as mischief).40 Additionally, this 6.1% figure includes all types of offences. The rates at

which an NCR accused who committed a severe violent index offence reoffended by committing

another severe violent offence within 3 years was extremely low: only 0.6%.41

The conclusions reached by the National Trajectory Project are not unique; various other studies

both in Canada and abroad report similar outcomes. In a recent Swedish study,42 one hundred offenders

charged with severe violent or sexual crimes were found guilty between 1998 and 2001 and sentenced:

37 Bonta et al, “The Prediction of Criminal and Violent Recidivism Among Mentally Disordered Offenders: A Meta-Analysis” (1998) 123:2 Psychological Bulletin, 123 at pp 123-4. [Bonta et al]

38 Yanick Charette et al, “The National Trajectory Project of Individuals Found Not Criminally Responsible on Account ofMental Disorder in Canada. Part 4: Criminal Recidivism.” (2015) 60:3 Can J Psychiatry, 127 at pp 127-8. [National Trajectory Project]

39 Ibid. 40 Ibid at p 128.41 Ibid at p 130.42 Nilssen et al, “Violent Recidivism: A Long-Time Follow-Up Study of Mentally Disordered Offenders”. (2011) PLoS

ONE 6 (10). [Nilssen et al]

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46 to compulsory forensic psychiatric care and 54 to prison. The individuals sentenced to compulsory

forensic care reoffended at significantly lower rates than did the mentally disordered prison population,

in spite of the fact that these offenders spent more time at liberty and therefore had greater opportunity

to commit violent offences.43 As has been demonstrated by other researchers, substance abuse,

psychopathy, and personality disorders are far more indicative of a person's likelihood of reoffending

than is index offence severity.44

There appears to be no evidence which suggests that treating NCR accused more harshly on the

basis of offence “brutality” plays any role in preventing future crime and protecting the public. In fact,

studies show an inverse correlation: the more brutal the offence, the less likely an NCR accused is to

reoffend. These studies demonstrate that the changes to the NCR regime brought about by the Act are

completely inconsistent with their objectives, exacting “a constitutional price”45 without providing a

corresponding benefit. Section 672.64(1)(b) is arbitrary and thus deprives NCR accused of liberty not

in accordance with the principles of fundamental justice.

A law which infringes s. 7 may still be saved by s. 1 of the Charter. The s. 1 analysis differs

from the s. 7 analysis in that it is focused on the furtherance of the public interest rather than the

infringement of the individual rights.46 The proper analysis was set out in R v Oakes.47 To pass the

Oakes test, the government must demonstrate a pressing and substantial objective and show that the

means chosen to achieve that objective are proportional to the limits placed on the Charter right. This

means that the law must be rationally connected to the limit, the limit must minimally impair the right

in question, and the deleterious effects of the law must not outweigh its salutary ones.48

Section 672.64(1)(b) arguably fails the Oakes test because the object of the provision is the

43 Ibid at p 7-8.44 Bonta et al, supra note 37 at p 135-6.45 Carter, supra note 28 at para 83. 46 Bedford, supra note 34 at para 125.47 R v Oakes, [1986] 1 SCR 103. [Oakes]48 Ibid at para 29.

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same in both the section 7 and 1 analyses: the protection of the public and prevention of further crime

by NCR accused. This is an identical situation as was addressed by the Supreme Court of Canada in R

v Smith, a case which concerned the prohibition on possession of non-dried marihuana for medical

purposes. In that case, the Court held:

“...the objective of the prohibition is the same in both analyses: the protection of health and safety. It follows that the same disconnect between the prohibition and its object that renders it arbitrary under s. 7 frustrates the requirement under s.1 that the limit on the right be rationally connected to a pressing objective.”49

As was the case in Smith, there appears to be no rational connection between Parliament's pressing and

substantial objective of public protection and the means used to achieve that objective. Section

672.64(1)(b) is probably not saved by section 1.

These arbitrariness concerns also engage section 9 of the Charter, the right not to be subjected to

arbitrary arrest or detention. While I acknowledge that it may be possible to challenge the high-risk

accused provisions on the basis of a section 9 violation, using arguments similar to those explored above, I

also think it likely that a section 7 claim would have a greater chance of success.50 For this reason, I will

not examine section 9 of the Charter in this paper.

B. Section 11(i)

Section 11(i) of the Charter establishes an accused person's right to the benefit of lesser

punishment in the event that the punishment for a given offence changes between the time of the

commission of the offence and the imposition of sentence. This section may be engaged for NCR

accused who were declared NCRMD prior to July 11, 2014, when the Act came into force and created

49 Smith, supra note 30 at para 29.50 It may not be advisable for an NCR accused to advance a s. 9 argument, given that the jurisprudence in this area of the law is relatively uncertain and given the availability of relief under alternative heads. Because s. 9 violations often occur alongside breaches of other Charter rights, such as an unlawful search under s. 8 or failure to provide counsel under s. 10(b), s. 9is rarely relied on as a stand-alone Charter claim (see Steve Coughlan, “Arbitrary Detention: Whither- or Wither – Section 9?” (2008) 40 SCLR (2d), 136 at 137 [Coughlan]). In cases where the claimant challenges a legislative scheme, rather than the admissibility of evidence, a s. 7 or 12 claim is also usually made. As a result, the s. 9 jurisprudence is relatively underdeveloped, making a s. 9 argument more difficult for an individual seeking to challenge the high-risk accused designation. For further discussion, see Coughlan, supra, and the decision in R v Lyons, [1987] 2 SCR 309.

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the high-risk accused designation. These individuals ran NCR defenses, unaware that in the future they

could be subjected to longer periods between reviews of their disposition and mandatory detention

orders if designated high-risk. Is it fair that they should be governed by the new legislation?

Only two court decisions have considered this issue: R v Schoenborn51 and R v CR.52 Allan

Schoenborn was found NCRMD for the murders of his three children on February 22, 2010.53 Since

that date, he has been under the jurisdiction of the B.C. Review Board. On July 11, 2014, the Act came

into force, and shortly thereafter the Crown sought to have Mr. Schoenborn designated a high-risk

accused. Mr. Schoenborn argued that the presumption against retrospective legislation was engaged,

and therefore the designation could not apply to him. The judge found that the high-risk accused

legislation fell within an exception to the presumption against retrospectivity. This exemption is for

legislation designed to protect the public. The judge cited Groberman J.A. in R v Thow:54

“The exception does, however, appear to be applicable only where a prejudicial sanction is imposed, not for penal purposes, but as a prophylactic measure to protect society against future wrongdoing by that person. While the imposition of such sanctions may, incidentally, inflict hardship on the wrongdoer, the infliction of such hardship is not the goal.”

A finding that the high-risk accused provisions fall within these boundaries rests on the belief that

the NCR regime is non-punitive and aimed at protecting the public. The s. 11(i) argument must fail,

because it only entitles an accused person to the benefit of lesser “punishment” - not to the benefit of

lesser “prophylactic measures”. As a result, the Crown is free to seek a high-risk accused

designation for Mr. Schoenborn.55

In reaching this conclusion, the Court in Schoenborn declined to follow the reasoning of a

Quebec decision, R v CR. The accused was found to have experienced a psychotic break while driving,

51 R v Schoenborn, 2015 BCSC 2278. [Schoenborn 2015]52 R v CR, 2015 QCCQ 2299. [CR] 53 R v Schoenborn, 2010 BCSC 220. [Schoenborn 2010]54 R v Thow, 2010 BCCA 538 at para 46, as cited in Schoenborn 2015, supra note 57 at para 24.55 A five-day trial is set for April 2016, in which Mr. Schoenborn's counsel plans to challenge the constitutionality of the

high-risk accused provisions. Tamsyn Burgmann, “Judge rules B.C. Crown can continue bid to argue mentally ill dad 'high-risk'”, The Canadian Press (2 Dec 2015), online: CTV News, <http://www.ctvnews.ca/canada/judge-rules-b-c-crown-can-continue-bid-to-argue-mentally-ill-dad-high-risk-1.2683318>.

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lost control of his vehicle, and killed two pedestrians on May 2, 2014. He was found NCRMD on

September 17, 2014. Between the date that the acts were committed and the verdict issuing, the Act

came into force. The Crown sought to designate CR as a high-risk accused, taking the view that the Act

applied retrospectively because it aimed to protect the public, and that it was analogous to the

acceptable restrospective application of dangerous offender legislation, as established in R v Johnson.56

The defense argued that the Act imposed de facto punishment on the accused and thus would

violate s. 11(i) if imposed. The Court rejected this claim, affirming the non-punitive nature of the Act.

However, the court also disagreed with the Crown on the view that Johnson was applicable. The Court

held that Johnson was distinguishable because it concerned the imposition of retrospective legislation

which was favourable to the accused, attaching a benefit rather than a sanction to past events.

Although the Court in CR held that the high-risk accused provisions were aimed at the

protection of the public, the court determined that they nonetheless fell outside the scope of the public

safety exception to the presumption against retrospectivity. This was because of the significance of the

rights at stake, and because the legislation did not include any statement about its temporal application.

At paragraphs 81 and 87, the court stated:

“...the legislation in question here is silent... We must, therefore, return to the presumption of non-retrospectivity of legislation or determine whether the changes affect a substantive right. If so, the legislation cannot have retrospective application....

Because of the importance attached to liberty, the teachings of the Supreme Court in Winko on detention as a last resort for an accused found not-criminally-responsible and the absence of a provision allowing for retrospective application leave us no choice but to conclude that the general rule should be followed.”

While the accused in CR sought to prevent the high-risk accused provisions from being applied

on the basis of a section 11(i) violation, the Court did so instead on the basis that they “affect a

substantive right” of significant importance. The CR and Schoenborn decisions demonstrate that a s.

11(i) Charter argument will likely fail: both decisions, while reaching opposite conclusions on the issue

56 R v Johnson, 2003 SCC 46.

Sudeyko 16

of retrospectivity, clearly state that the NCR regime is not punitive, and therefore the high-risk accused

provisions do not engage the Charter right to lesser punishment.

D. Section 12

Section 12 of the Charter states that everyone has the right “not to be subjected to cruel and

unusual treatment or punishment”.57 The s. 12 jurisprudence has established that torture is inherently

cruel and unusual;58 that lengthy mandatory minimum sentences in some cases constitute cruel and

unusual punishment;59 and that the death penalty, or extradition when an accused would face the dealth

penalty in their country of origin, may constitute cruel and unusual punishment.60

The decisions in Schoenborn and CR prevent a s. 12 claim which argues that the high-risk

accused provisions subject designees to “cruel and unusual punishment”: both decisions held that the

NCR regime is non-punitive. Therefore, while mandatory detention as a result of a high-risk accused

designation might be cruel and unusual, it is not “punishment”. However, s. 12 also provides a

guarantee against cruel and unusual “treatment”. It remains open whether such detention, and other

aspects of the high-risk accused provisions could be considered “cruel and unusual treatment”. The

recent Federal Court decision, Canadian Doctors for Refugee Care v Canada (Attorney General)61

addressed the question of what “treatment” means in a Charter context. In that case, the court held that

limiting access to healthcare under the Interim Federal Healthcare Plan for refugee claimants

constituted cruel and unusual treatment in violation of s. 12, and that the governmental action was not

saved under s. 1. Canadian Doctors also clearly set out the test for determining whether s. 12 has been

infringed:

1) Has there been state conduct which constitutes “treatment”?

57 Charter, supra note 7, s 12.58 Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1.59 R v Smith, [1987] 1 SCR 1045.60 Obiter in United States v Burns, 2001 SCC 7, discussion at paras 51-57.61 Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 [Canadian Doctors].

Sudeyko 17

2) If so, is that treatment “cruel and unusual”?62

The state conduct in question here is Parliament's decision to allow an extension of the period

between reviews of a disposition from 12 months to 36 months for NCR accused persons designated

“high-risk”. The relevant provision states:

“... at the conclusion of a hearing under subsection 672.47(4) or this section in respect of a high-risk accused, the Review Board may, after making a disposition, extend the time for holding a subsequent hearing under this section to a maximum of 36 months if the Review Board is satisfied on the basis of any relevant information, including disposition information as defined in subsection 672.51(1) and an assessment report made under an assessment ordered under paragraph 672.121(c), that the accused’s condition is not likely to improve and that detention remains necessary for the period of the extension.”63

The automatic detention of certain NCR accused persons, with a mandatory prohibition on conditions

which permit the individual to leave the hospital unless it is absolutely necessary for medical purposes,

and with no possibility of review of this draconian disposition for three years, arguably constitutes

cruel and unusual treatment in violation of s. 12 of the Charter.

In Chiarelli v Canada (Minister of Employment & Immigration),the Supreme Court of Canada

adopted the Concise Oxford Dictionary definition of ‘treatment’ as “a process or manner of behaving

towards or dealing with a person or thing...”64 Treatment may be either an imposition, such as a jail

sentence; or a prohibition,65 such as eliminating access to a social program. Where the impugned

conduct prohibits something, that prohibition can only constitute “treatment” if the claimant is “in

some way within the special administrative control of the state”.66 In Canadian Doctors, refugee

claimants were deemed to fall within the special administrative control of the state's immigration

jurisdiction because they lacked legal status, were subject to detention at immigration facilities, were

unable to work and access the same kinds of benefits as Canadian citizens, and were wholly dependent

62 Ibid at para 576.63 Code, supra note 2, s. 672.81(1.32).64 Chiarelli v Canada (Minister of Employment & Immigration), [1992] 1 SCR 711 at p 735. 65 Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 at para 182. 66 Ibid.

Sudeyko 18

on government decisions as to their refugee claims and ability to remain in Canada.67 NCR accused fall

even more obviously within the special administrative control of the state than do refugee claimants; in

particular, individuals designated high-risk and other accused with dispositions requiring detention are

both physically and legally within the state's control. It is arguable that the government's conduct in

removing high-risk accused persons' access to review board hearings every 12 months is akin to a

prohibition, and that prohibition applies to individuals within the state's administrative control. The

high-risk accused designation process is most likely “treatment” within the meaning of the Charter.

The next step of the analysis requires the court to determine whether this treatment is “cruel and

unusual”. The court in Canadian Doctors listed the factors to be considered in making this

determination at paragraph 614:

“In determining whether treatment or punishment is “cruel and unusual”, Canadian courts have looked at a number of factors as part of a kind of ‘cost/benefit’ analysis. These factors include whether the treatment goes beyond what is necessary to achieve a legitimate aim, whether there are adequate alternatives, whether the treatment is arbitrary and whether it has a value or social purpose. Other considerations include whether the treatment in question is unacceptable to a largesegment of the population, whether it accords with public standards of decency or propriety, whether it shocks the general conscience, and whether it is unusually severe and hence degrading to human dignity and worth: R. v. Smith, above at para. 44.”

The extension of the period between reviews of dispositions possesses several of these criteria. First, it

goes beyond what is necessary to achieve a legitimate aim. While there are valid policy reasons for

detaining some NCR accused, and even for creating a high-risk category – namely, containing

disordered individuals and protecting the public – there does not appear to be a valid reason for

extending the period between reviews to 36 months. The public is not “extra” protected by removing

the accused's right to a hearing, because the review board is not required to absolutely or conditionally

discharge the accused simply by virtue of a hearing being held. The extension serves no purpose; truly

dangerous individuals will not be released at their hearings, while the rehabilitated will spend two more

years in detention than they otherwise would have. What is there to be gained by allowing NCR

67 Canadian Doctors, supra note 61 at para 585.

Sudeyko 19

accused to languish in hospitals for three years without the possibility of review?

The provision erodes the rights of NCR accused without creating a corresponding public

benefit. Because the extension is devoid of social value, there is no need to find an “adequate

alternative”. The extension is also unusually severe. Persons who receive NCR verdicts and subsequent

detention orders are essentially subjected to a non-punitive version of an indeterminate sentence. If

these indeterminate sentences can no longer be reviewed on a reasonably frequent basis, this constitutes

unusually severe treatment of individuals who are not legally culpable for their acts.

It is possible that a court would find that s. 672.81(1.32) itself is not unconstitutional, but rather

that the review board which ordered the extension had exercised its discretion in an unconstitutional

way and should not have extended the review period in that particular instance. This would provide

relief to an individual accused, but would not address the regime in general. A similar situation arose in

Steele v Mountain Institution.68 In that case, the claimant had been imprisoned for 37 years after being

convicted of attempted rape at age 18 and declared a “criminal sexual psychopath” pursuant to the

dangerous offender provisions of the Code in force at the time. He found himself in a plight where he

could not safely be released on parole without first accessing psychiatric treatment, and yet the

institution in which he was incarcerated lacked the appropriate facilities. By the time these were made

available, his condition had deteriorated so much that he was unable to take advantage of them, and he

continued to be denied parole. Steele then brought a claim arguing that his lengthy incarceration and

indeterminate sentence were contrary to s. 12 of the Charter, and the Supreme Court of Canada agreed.

However, they found that it was the Parole Board – not the dangerous offender legislation and the

indeterminate sentence itself - which had violated his constitutional rights. At page 1412, Cory J.

stated:

“It is only by a careful consideration and application of these criteria that the indeterminate sentence

68 Steele v Mountain Institution, [1990] 2 SCR 1385.

Sudeyko 20

can be made to fit the circumstances of the individual offender. Doing this will ensure that the dangerous offender sentencing provisions do not violate s. 12 of the Charter. If it is clear on the face of the record that the Board has misapplied or disregarded those criteria over a period of years with the result that an offender remains incarcerated far beyond the time he or she should have been properly paroled, then the Board's decision to keep the offender incarcerated may well violate s. 12.”

However, the situation of high-risk accused who have been subjected to s. 672.81(1.32) is likely

distinguishable. Steele had the statutory opportunity to seek parole on a regular basis, and was repeatedly

rejected by the Parole Board. Under the Act, certain high-risk accused will be denied the ability to even

ask for a review of their disposition until 3 years have passed.

It would appear that the high-risk accused designation has so far been sought sparingly, and that

extensions of the period between reviews will likely be rare. However, this is of little comfort. It is

difficult to imagine any situation in which such a lengthy extension between review periods would be

necessary or beneficial. Although there are certainly cases in which an NCR accused will not have

improved enough to be released within three years, there is no reason why they should be deprived of

the right to have their disposition reviewed should they choose to exercise it. This review may be

fruitless, in which case there is no harm done to the public. Or it may be fruitful, in which case the accused

must no longer pose a risk to society and, pursuant to the non-punitive principles of the NCR regime,

should rightfully be released. The legislation offers no benefit, but could visit grevious harm on an NCR

accused whose condition has improved such that they should properly be subject to a less onerous

disposition. The risk of deprivation of liberty for so few individuals might be outweighed if the legislation

served a valid purpose otherwise. It does not. As a result, there is a compelling argument that s.

672.81(1.32) of the Code violates s. 12 of the Charter.

Furthermore, it appears likely that section 672.81(1.32) cannot be saved by section 1. While

protecting public safety is a pressing and substantial objective, the means chosen to achieve this – the

extension of time between reviews of dispositions – is not rationally connected to public safety. It is not

clear how limiting access to review makes the public any more safe than they would be otherwise. But

Sudeyko 21

even if this analysis is incorrect, and the means are rationally connected to the objective, the legislation is

probably not minimally impairing. It will likely affect very few people, but those whom it does affect will

be impacted in a serious way. They will have their liberty restricted for longer than is necessary to treat

their mental disorder and protect the public. Meanwhile, all of the government's valid public safety

objectives coulds be achieved in a less intrusive way: through the existing review board processes.

Policy issues and practical considerations

Some aspects of the Act have been relatively uncontroversial, and I have declined to discuss

them in detail. The victims' rights amendments have received little criticism, for example. Other parts

of the Act have, however, been roundly criticized by both the bar and mental health professionals, not

necessarily for their problematic constitutional implications but simply because they exemplify poor

public policy.

The bar has expressed disapproval of many of the changes made by the Act. The Canadian Bar

Association questioned the Act's constitutionality and claimed it would have “serious prejudicial

effects” on mentally disordered accused persons.69 The Criminal Lawyers' Association (CLA) made

submissions before a Senate Committee on the Act's similar predecessor, Bill C-54, arguing that the

reforms were not an example of evidence-based policy-making, and that holding NCR accused in

detention longer would only put more strain on “an already overtaxed system”.70 The CLA described

the high-risk accused provisions as both “unecessary and unhelpful”.71 Those responsible for

implementing the legislation itself have also expressed serious concerns. Justice Richard Schneider,

Chair of the Ontario Review Board, stated:

“Assuming there was a real problem with the current scheme, the proposed amendments completely miss the target”.72

69 Ling, supra note 16. 70 “Submissions on Bill C-54: Not Criminally Responsible Reform Act”, Criminal Lawyers' Association, June 2013. 71 Ibid. 72 Ibid.

Sudeyko 22

Justice Schneider also suggested that Bill C-54 was illustrative of Parliament's emotional reaction to

tragic events rather than a thoroughly considered, evidence-based piece of policy. He said:

“We are best to have our policy and legislation flow from science rather than allow it to be pulled and contorted by reflex and emotion... Rather than turn to science, the proponents of Bill C-54 have embraced the American ‘tough on crime’ approach … which seems to inevitably involve locking people up.”73

The medical and mental health community opposed the Act as well. The Coalition of Groups

Opposed to Bill C-14 includes 11 national health organiziations such as the Canadian Nurses

Association (CNA), the Canadian Mental Health Association (CMHA), and the Schizophrenia Society

of Canada.74 The Coalition expressed concern that the Act will serve to strengthen stigma around

mental illness by reinforcing the stereotype that mentally ill people are dangerous and violent.75 This

stigma prevents people from accessing help when they need it most.

Doctors have also argued that the high-risk accused provisions, rather than making the public

safer, will actually impede the ability to assess and manage risk. Dr. Stanley Yaren, former treating

psychiatrist for Vincent Li and former president of the Canadian Psychiatric Association, explained that

gradual outings, such as walks on the hospital grounds or community visits, allow psychiatrists to test

how well an individual is likely to handle life outside the facility.76 Removing the accused person's

access to such outings also removes their doctor's ability to assess their improvement. Furthermore, Dr.

Yaren suggested that keeping high-risk accused under strict detention orders for up to three years

contradicts the idea that hospitals are not prisons, and that accused persons are patients, not criminals.

Yaren expressed concern that these restrictions could cause individuals to regress in their treatment:

73 Kirk Makin, “Critics slam new ‘high-risk’ designation for mentally ill offenders”, The Globe and Mail (28 Apr 2013), online: The Globe and Mail, <http://www.theglobeandmail.com/news/national/critics-slam-new-high-risk-designation-for-mentally-ill-offenders/article11603053/>.

74 “News”, Schizophrenia Society of Canada, online: <http://www.schizophrenia.ca/news_details.php?id=4>75 Chris Sommerville, Senate Committee Speaking Notes, Schizophrenia Society of Canada, online:

<http://www.schizophrenia.ca/news_details.php?id=4 >76 Meagan Fitzpatrick , “Psychiatrist wary of not-criminally-responsible proposal”, CBC (05 Jun 2013), online: CBC

News, <http://www.cbc.ca/news/politics/psychiatrist-wary-of-not-criminally-responsible-proposal-1.1322277>. Note that Dr. Yaren was referring to Bill C-54, not Bill C-14.

Sudeyko 23

“They become warehoused rather than treated.”77

Despite evident disapproval, it is difficult to know at this point the extent of the effects the Act

has had on mentally disordered accused persons, or on the management of their cases within the

criminal justice system. The Act has been in force for less than two years, so while there are some

review board decisions applying the new legislation, there are few court decisions which have done so.

The B.C. Review Board has been clear and deliberate in its application of the new legislation. The

Board has interpreted the terminology amendments as not substantively altering the law, arguing that

public safety has always been “the paramount consideration”, that it is unclear whether there is a

difference between “real” risk and risk simpliciter, and that the removal of the phrase “least onerous

and least restrictive” has not actually removed the requirement that dispositions continue to be made in

the least onerous and least restrictive way. Similarly, the Board has expressed its view that the victims'

rights amendments do little more than codify practices which the Board was already engaged in.

The Ontario Review Board has also held that “necessary and appropriate” is clarifying language

and that the standard for imposing a disposition remains the same; that is, the disposition must be the

least restrictive one available for the accused.78 The Ontario Court of Appeal affirmed this

interpretation in Re Osawe79 and Re Ranieri.80 Without further research, it is difficult to know whether

other provinces are taking different approaches to the interpretation of the amendments.81

It would appear that high-risk accused applications are not being made by Crown on a regular

basis. In B.C., Allan Schoenborn is the only individual for whom the designation has been sought. In

Quebec, the designations can only be given to individuals who committed the index offences after the

Act came into force, limiting the legislation's applicability. Thus far, one person has been designated

77 Ibid. 78 Re Ahmed-Hirse, [2014] ORBD No 1876. 79 Re Osawe, 2015 ONCA 280.80 Re Ranieri, 2015 ONCA 444. 81 Review Board decisions from other provinces are not available on CanLii or Quicklaw, and only a few provinces provide information on how to order copies of Review Board decisions.

Sudeyko 24

high-risk.82 Yet the relative rarity with which these provisions are used should not excuse them from

legal challenge if they are unconstitutional, or from public criticism if they are simply unwise.

Raising an NCRMD defence has always been a serious and challenging decision for accused

persons and their counsel. Those who are designated NCR receive what are in effect indeterminate

“sentences”, and risk spending more time detained in psychiatric hospitals than they would if convicted

and sentenced in the normal course. For defence counsel representing mentally disordered individuals,

the stakes are now even higher as a result of the introduction of the high-risk accused designation. If

counsel thinks that there is a possibility that the Crown could successfully seek a high-risk accused

designation for the client, thus precluding any hope of absolute or conditional discharge and imposing

an extremely strict detention order, it may be tempting to enter a guilty plea or run a trial without

raising the NCRMD defence. This is both profoundly unfair from a rule of law perspective and

incredibly impactful for the mentally disordered client, who will be unable to access the psychiatric

treatment they need, and who may eventually emerge from prison more ill than they were when they

entered it.

If the Act has a chilling effect on the willingness of mentally disordered accused to seek an

NCR verdict, this will have an negative impact on public safety. The very objectives that Parliament

sought to achieve through this legislation will be undermined by the fact that more mentally disordered

persons will either receive full acquittals or spend time in prison, rather than receiving treatment. This

may make them more dangerous when they are ultimately released. Furthermore, the public and

political discourse around the Act has tended to villify and dehumanize mentally disordered accused.

Vincent Li (now Will Baker) was recently granted the freedom to live independently subject to

conditions, and the Manitoba Review Board immediately faced backlash. Conservative Member of

Parliament Paul Bezan described the decision as “an insult” to the victim's family and as a risk to

82 ML et Institut A, 2015 QCTAQ 09869. Note that I have been unable to find a translation of this decision so I do not comment on it in detail.

Sudeyko 25

public safety.83 These sorts of uninformed reactions contribute to the already-powerful stigma around

mental illness, which may discourage the mentally ill from seeking help before they commit an offence.

The Act is also unwise because it removes power and discretion from a tribunal of experts, and

places it in the hands of the generalist courts. which have less experience understanding mental

disorder. When courts determine whether an accused was not-criminally-responsible for an offence,

they look to the past, assessing a state of mind at a given moment. They do not generally assess the risk

potential of NCR accused; although the courts have the ability to make initial dispositions after an NCR

verdict, they typically refer these decisions to review boards.84 Review boards are comprised of judges,

lawyers, psychiatrists, and medical professionals who work extensively in this area of the law.85 They

have specialized knowledge, as well as the ability to request and seek out as much information as they

need to make their decisions.86 Why has Parliament limited the discretion of an administrative body

which arguably possesses greater expertise relative to the courts?

Finally, there is one aspect of the victims' right amendments which, while not under

constitutional challenge, at least demonstrates poor policy-making. Pursuant to s. 672.5(5.2), a victim

can request notice of the accused's intended place of residence upon their absolute or conditional

discharge, and the court or review board is required to provide this information. The provision

sacrifices the accused's privacy, compromises their security, and faciliates vigilante justice. While

victims may be understandably traumatized and upset by the prospect of the accused living in their

community, receiving notice of their residence does little to actually address their fears. It could,

however, result in accused persons being pressured to leave the community in which they have the

83 Karen Pauls, “Tory MP asks Manitoba review board to deny Vince Li more freedom”, CBC News (24 Feb 2016) online: <http://www.cbc.ca/news/canada/manitoba/vince-li-james-bezan-manitoba-high-risk-1.3462416>.84 “FAQ”, British Columbia Review Board, online: <http://www.bcrb.bc.ca/faq.html>.85 Section 672.39 of the Code mandates that at least one member of the 5-person Review Board panel must be a

psychiatrist. 86 Because review board hearings are not adversarial, the board can actively seek information to assist them in assessing

risk and making dispositions. They are not limited to the material placed before them. See Winko, supra note 14 at para 62.

Sudeyko 26

most medical and psychological support, affecting their treatment and, ironically, increasing the risk of

relapse.

Conclusions

The Not Criminally Responsible Reform Act is problematic from both a policy perspective and a

constitutional perspective. The Act likely violates the Charter of Rights and Freedoms: as explored

above, the section 7 and 12 claims probably have the greatest chance of success. The section 7

overbreadth argument is rendered unecessary - in B.C. and Ontario at least – by their respective Review

Boards' decisions to interpret the sections in question in accordance with the Court in Winko and thus

with the Charter. Furthermore, it remains unclear whether the Act actually created new law or simply

codified existing law. A successful section 11(i) claim would need to demonstrate that the Act imposes

a “punishment”, overcoming the unfavourable decisions in R v Schoenborn and R v CR.

A section 12 claim made on the basis that the possible extension of time between reviews of

disposition is “cruel and unusual treatment” would be novel, but the argument appears to be fairly

strong. The court in Canadian Doctors interpreteted “treatment” expansively, and found that the

removal of a benefit, privilege, or right could be cruel and unusual, especially where it impacts already-

vulnerable and disadvantaged individuals.87 NCR accused are certainly vulnerable, and the removal of

their right to annual hearings is analogous to the removal of access to health care. The provision

allowing a court or review board to deprive high-risk accused persons of their right to an annual hearing to

have their disposition reviewed could be found to constitute cruel and unusual treatment. However, if this

argument was successful, it would result only in the striking down of s. 672.81(1.32), impacting few

individuals and doing nothing to address the high-risk accused provisions themselves.

A claimant is arguably most likely to succeed in challenging the high-risk accused provisions on

the basis of a section 7 arbitrariness argument. The provisions in question strip NCR accused of liberty in

87 Canadian Doctors, supra note 61, at paras 610 and 634.

Sudeyko 27

an arbitrary manner, in violation of the principles of fundamental justice. A section 7 claim would also

offer the most comprehensive remedy as it would require courts to either strike down the high-risk

accused provisions or read down those provisions so that the criteria for making the designation is no

longer arbitrary.

The Act attempts to solve a problem which does not actually exist: NCR accused who commit

violent offences are not statistically more likely to reoffend and do not pose a greater risk to public

safety than other offenders. In fact, given the social and political context in which the Act was passed,

Parliament's disregard of the available social science data, and the strong possibility of Charter

violations, one can't help but wonder if the Act focuses more on making a statement than it does on

addressing a problem. A cynic might even say that the Act provides a clear example of political

pandering, and was designed to prey on public fears and exploit widespread misunderstanding about

the relationship between mental illness and crime. If Parliament truly wanted to protect public safety, it

could focus on ensuring that mentally ill individuals receive the treatment they need in a timely and

accessible manner, in order to prevent the commission of offences in the first place. Instead, Parliament

chose a path which restricts the liberty of NCR accused in what are arguably unconstitutional ways;

which further stigmatizes mental illness; which earned the disapproval of members of both the legal

and mental health professions, and which will likely be ineffective at best at protecting the public. The

Act is an unnecessary and unwise piece of legislation.

Sudeyko 28

LEGISLATION

Criminal Code of Canada, RSC 1985 c C-46.

Not Criminally Responsible Reform Act, SC 2014 c 6.

Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

JURISPRUDENCE

Caselaw

Canada (Attorney General) v Bedford, 2013 SCC 72.

Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651.

Carter v Canada (Attorney General), 2015 SCC 5.

Chiarelli v Canada (Minister of Employment & Immigration), [1992] 1 SCR 711.

McDiarmid Lumber v God's Lake First Nation, 2006 SCC 58.

ML et Institut A, 2015 QCTAQ 09869.

R v CR, 2015 QCCQ 2299.

R v Heywood, [1994] 3 SCR 761.

R v Johnson, 2003 SCC 46.

R v Lyons, 1987 2 SCR 309.

R v Malmo-Levine, 2003 SCC 74.

R v Mann, 2004 SCC 52.

R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606.

R v Oakes, [1986] 1 SCR 103.

R v Schoenborn, 2010 BCSC 220.

R v Schoenborn, 2015 BCSC 2254.

R v Smith, 2015 SCC 54.

Sudeyko 29

R v Smith, [1987] 1 SCR 1045.

R v Swain, [1991] 1 SCR 933.

R v Thow, 2010 BCCA 538.

Re BC Motor Vehicle Act, [1985] 2 SCR 486.

Re Ranieri, 2015 ONCA 444.

Re Osawe, 2015 ONCA 280.

Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519.

Steele v Mountain Institution, [1990] 2 SCR 1385.

Suresh v Canada, 2002 SCC 1.

United States v Burns, 2001 SCC 7.

Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625.

Review Board Decisions

Re Ahmed-Hirse, [2014] ORBD No 1876.

Re Baranyais, BC Review Board, Sept 11, 2014.

Re Lacerte (aka Mazzei), BC Review Board, July 15, 2014

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