Deacon v. Canada (Attorney General)

Deacon v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2006-07-26
Neutral citation
2006 FCA 265
File numbers
A-580-05
Notes
Reported Decision
Decision Content
Date: 20060726
Docket: A-580-05
Citation: 2006 FCA 265
CORAM: DÉCARY J.A.
LINDEN J.A.
SHARLOW J.A.
BETWEEN:
SHAUN JOSHUA DEACON
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia, on June 26, 2006.
Judgment delivered at Ottawa, Ontario, on July 26, 2006.
REASONS FOR JUDGMENT BY: LINDEN J.A.
CONCURRED IN BY: DÉCARY J.A.
SHARLOW J.A.
Date: 20060726
Docket: A-580-05
Citation: 2006 FCA 265
CORAM: DÉCARY J.A.
LINDEN J.A.
SHARLOW J.A.
BETWEEN:
SHAUN JOSHUA DEACON
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LINDEN J.A.
I. Introduction
[1] This appeal raises the issue of the jurisdiction of the National Parole Board, in the case of long-term offenders, to require the taking of medication as a condition for release, without the consent of the offender. If such jurisdiction exists, this Court must then determine whether such a condition complies with the rights guaranteed under the Canadian Charter of Rights and Freedoms.
[2] This is an appeal by Shaun Joshua Deacon (the appellant) from a decision of the Federal Court dated November 4, 2005 (reported at (2005), 67 W.C.B. (2d) 738, 2005 FC 1489), dismissing the appellant’s application for judicial review in respect of a decision of the National Parole Board (NPB or Board), dated February 8, 2005, which had confirmed all the conditions of the appellant’s long-term supervision order.
[3] The appellant challenges the condition of his long-term supervision order requiring him to “take medication as prescribed by a physician”. The medication prescribed by the appellant’s physicians consists of psychopharmacological therapy designed to address his sexual fantasies, urges and behaviours, his post-traumatic stress disorder and his anxiety. In particular, the appellant has been prescribed anti-androgen medication, sometimes dramatically described as “chemical castration”.
[4] For the following reasons, we conclude that the condition challenged by the appellant in this case falls within the jurisdiction of the Board. In addition, we find that although the condition at issue engages the appellant’s constitutional rights to liberty and security of the person, the limitation of these rights is in accordance with the principles of fundamental justice, and therefore does not infringe section 7 of the Charter. Accordingly, we would dismiss the appeal.
II. The Facts
[5] The appellant has been diagnosed as a homosexual pedophile, and has a lengthy history of sexual offences against children. The appellant’s criminal history is set out in some detail by the British Columbia Court of Appeal in R. v. Deacon (2004), 182 C.C.C. (3d) 257 at paras. 4-14. For the purposes of this appeal, it is sufficient to note that the appellant’s offences follow a predictable pattern in which the appellant wins the affection and confidence of children and then sexually abuses them.
[6] The appellant was declared a long-term offender, pursuant to s.753.1(1) of the Criminal Code, on August 4, 1998. The predicate offences for the long-term offender application, which involved an 11-year-old boy, occurred while the appellant was on probation after serving a two-year sentence for a previous offence of sexual interference with a child. The appellant was sentenced to three years’ imprisonment for these offences, and was made subject to a long-term supervision order for the ten year maximum period available.
[7] The appellant was released on long-term supervision for the first time on August 2, 2001. At that time, the conditions of the appellant’s long-term supervision order included a prohibition from having any contact with children under 16 years, and a requirement that he live at a specified community residential facility. The long-term supervision order did not include the condition challenged on this appeal.
[8] Three weeks after being released on long-term supervision, the appellant initiated a relationship with a 10 year-old boy. This conduct, which involved contact with a child consistent with the appellant’s modus operandi, resulted in the appellant’s conviction for breach of his long-term supervision order, for which he was sentenced to two years imprisonment (R. v. S.J.D., [2002] B.C.J. No. 2745 (QL) (B.C. Prov. Ct. (Crim. Div.)), sentence aff’d (2004), 182 C.C.C. (3d) 257 (B.C.C.A.)).
[9] The appellant resumed serving under his long-term supervision order on November 12, 2004. Prior to his release from custody, the Board conducted a review of the appellant’s circumstances to determine what special conditions might be appropriate. This time, in its pre-release decision of October 22, 2004, the Board established the following new conditions for the appellant’s long-term supervision:
1. To reside at a CRF/CCC [Community Residential Facility / Community Correctional Centre].
2. Participate in community based sex offender program and psychological counselling.
3. Take medication as prescribed by a physician.
4. Report all relationships to your Parole Supervisor.
5. Not to attend places where children under the age 16 are likely to be. . .
6. No indirect or direct contact with your victims unless pre-approved by your Parole Supervisor in writing. . .
7. No direct or indirect contact with any child under the age of 16 and women or guardians of children under the age of 16 unless pre-approved by your Parole Supervisor.
[10] Pursuant to condition 3 of the Board’s long-term supervision order, the appellant’s physicians have prescribed five different prescription medications: Lupron, received monthly by intramuscular injection, to lower libido and control sexual fantasies; Topiramate, taken daily by mouth, to treat post-traumatic stress disorder; Zoloft, taken daily by mouth, to treat anxiety and lower libido; Lipitor, taken daily by mouth, to lower the appellant’s high cholesterol, a side effect of the other medication; and, Prometrium, taken daily by mouth, to treat the side effects of Lupron, which can cause the development of female characteristics. The appellant is also required to take Tums calcium tablets and multi-vitamins, due to the calcium and vitamin deficiencies caused by the other medications.
[11] The appellant complains of numerous side effects caused by the prescribed medications, including mood swings, drowsiness, vomiting, nausea and changes to bone density which over many years can bring on osteoporosis. The medications also cause large discolourations to appear on the appellant’s body.
[12] On January 27, 2005, the appellant applied to the Board for a variation of certain conditions of his long-term supervision order and, in particular, sought the deletion of the condition that required him to take medication as prescribed by a physician.
III. The Issues
[13] The following issues are raised by this appeal:
(A) Does the National Parole Board have statutory jurisdiction to impose, on a long-term offender subject to a long-term supervision order after the expiry of his warrant of committal, a special condition to take medication as prescribed by a physician?
(B) Does the special condition to take medication as prescribed by a physician constitute an infringement of the appellant’s rights under section 7 of the Canadian Charter of Rights and Freedoms?
(C) If yes, is the limitation one which is reasonable, prescribed by law and demonstrably justified pursuant to section 1 of the Charter?
IV. Constitutional and Statutory Provisions
[14] The Board’s statutory jurisdiction to impose conditions upon long-term offenders, to govern the supervision period following the expiry of the offender’s sentence, is set out in subsection 753.2(1) of the Criminal Code and subsection 134.1(2) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA):
753.2 (1) Subject to subsection (2), an offender who is required to be supervised by an order made under paragraph 753.1(3)(b) [long term offender supervision order] shall be supervised in accordance with the Corrections and Conditional Release Act when the offender has finished serving
(a) the sentence for the offence for which the offender has been convicted; and
(b) all other sentences for offences for which the offender is convicted and for which sentence of a term of imprisonment is imposed on the offender, either before or after the conviction for the offence referred to in paragraph (a).
753.2 (1) Sous réserve du paragraphe (2), le délinquant soumis à une ordonnance de surveillance aux termes du paragraphe 753.1(3) [ordonnance de surveillance de longue durée] est surveillé au sein de la collectivité en conformité avec la Loi sur le système correctionnel et la mise en liberté sous condition lorsqu’il a terminé de purger :
a) d’une part, la peine imposée pour l’infraction dont il a été déclaré coupable;
b) d’autre part, toutes autres peines d’emprisonnement imposées pour des infractions dont il est déclaré coupable avant ou après la déclaration de culpabilité pour l’infraction visée à l’alinéa a).
134.1 (2) The Board may establish conditions for the long-term supervision of the offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender.
134.1 (2) La Commission peut imposer au délinquant les conditions de surveillance qu’elle juge raisonnables et nécessaires pour protéger la société et favoriser la réinsertion sociale du délinquant.
[15] Pursuant to subsection 134.1(1) of the CCRA, long-term offenders subject to long-term supervision orders are also deemed to be subject to the conditions prescribed in subsection 161(1) of the Corrections and Conditional Release Regulations, SOR/92-620, “with such modifications as the circumstances require”. Subsection 161(1) of the Regulations sets out the following conditions:
161. (1) For the purposes of subsection 133(2) of the Act, every offender who is released on parole or statutory release is subject to the following conditions, namely, that the offender
(a) on release, travel directly to the offender's place of residence, as set out in the release certificate respecting the offender, and report to the offender's parole supervisor immediately and thereafter as instructed by the parole supervisor;
(b) remain at all times in Canada within the territorial boundaries fixed by the parole supervisor;
(c) obey the law and keep the peace;
(d) inform the parole supervisor immediately on arrest or on being questioned by the police;
(e) at all times carry the release certificate and the identity card provided by the releasing authority and produce them on request for identification to any peace officer or parole supervisor;
(f) report to the police if and as instructed by the parole supervisor;
(g) advise the parole supervisor of the offender's address of residence on release and thereafter report immediately
(i) any change in the offender's address of residence,
(ii) any change in the offender's normal occupation, including employment, vocational or educational training and volunteer work,
(iii) any change in the domestic or financial situation of the offender and, on request of the parole supervisor, any change that the offender has knowledge of in the family situation of the offender, and
(iv) any change that may reasonably be expected to affect the offender's ability to comply with the conditions of parole or statutory release;
(h) not own, possess or have the control of any weapon, as defined in section 2 of the Criminal Code, except as authorized by the parole supervisor; and
(i) in respect of an offender released on day parole, on completion of the day parole, return to the penitentiary from which the offender was released on the date and at the time provided for in the release certificate.
161. (1) Pour l'application du paragraphe 133(2) de la Loi, les conditions de mise en liberté qui sont réputées avoir été imposées au délinquant dans tous les cas de libération conditionnelle ou d'office sont les suivantes :
a) dès sa mise en liberté, le délinquant doit se rendre directement à sa résidence, dont l'adresse est indiquée sur son certificat de mise en liberté, se présenter immédiatement à son surveillant de liberté conditionnelle et se présenter ensuite à lui selon les directives de celui-ci;
b) il doit rester à tout moment au Canada, dans les limites territoriales spécifiées par son surveillant;
c) il doit respecter la loi et ne pas troubler l'ordre public;
d) il doit informer immédiatement son surveillant en cas d'arrestation ou d'interrogatoire par la police;
e) il doit porter sur lui à tout moment le certificat de mise en liberté et la carte d'identité que lui a remis l'autorité compétente et les présenter à tout agent de la paix ou surveillant de liberté conditionnelle qui lui en fait la demande à des fins d'identification;
f) le cas échéant, il doit se présenter à la police, à la demande de son surveillant et selon ses directives;
g) dès sa mise en liberté, il doit communiquer à son surveillant l'adresse de sa résidence, de même que l'informer sans délai de :
(i) tout changement de résidence,
(ii) tout changement d'occupation habituelle, notamment un changement d'emploi rémunéré ou bénévole ou un changement de cours de formation,
(iii) tout changement dans sa situation domestique ou financière et, sur demande de son surveillant, tout changement dont il est au courant concernant sa famille,
(iv) tout changement qui, selon ce qui peut être raisonnablement prévu, pourrait affecter sa capacité de respecter les conditions de sa libération conditionnelle ou d'office;
h) il ne doit pas être en possession d'arme, au sens de l'article 2 du Code criminel, ni en avoir le contrôle ou la propriété, sauf avec l'autorisation de son surveillant;
i) s'il est en semi-liberté, il doit, dès la fin de sa période de semi-liberté, réintégrer le pénitencier d'où il a été mis en liberté à l'heure et à la date inscrites à son certificat de mise en liberté.
[16] The following Charter provisions are also relevant to the issues raised in this appeal:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
V. Judicial History
(a) The Board’s pre-release and post-release decisions
[17] The special conditions governing the appellant’s long-term supervision were set by the Board in its pre-release decision of October 22, 2004. Following the appellant’s application for a variation to his long-term supervision order, these conditions were confirmed by the Board in its post-release decision of February 8, 2005. The judicial review of this latter decision forms the basis for the current appeal.
[18] In its pre-release decision, the Board concluded that the prescribed special conditions “are each reasonable and necessary to manage your risk and to assist in your reintegration, and in the absence of these special conditions you pose a substantial risk to the community” (Appeal Book Vol. 1, p. 56). In determining that the conditions were necessary to manage the appellant’s risk, the Board took into account the individual circumstances and history of the appellant, noting in particular that in the past the appellant had “shown no willingness to abide by the release conditions imposed upon [him]”, that the appellant had not participated in any programming to address his risk factors since he last reoffended, and that actuarial measures and psychological assessments indicated that the appellant posed a moderate to high risk to reoffend violently and a high risk to reoffend sexually (Appeal Book Vol. 1, p. 55-56).
[19] With respect to the special condition concerning medication, the Board explained its reasons as follows (Appeal Book Vol.1, p. 57):
You have indicated a dissatisfaction with the level and type of medications prescribed to reduce your deviant arousals. You have threatened to stop taking these medications when you become frustrated. Your risk of reoffend [sic] will greatly escalate in the absence of taking these medications.
[20] In its post-release decision, the Board repeated many of the factors noted in the pre-release decision. In addition, the Board observed that “nothing has changed in the area of program participation to this date”, and that the appellant “continue[s] to refuse to sign the consent form that will allow [him] to begin National Sex Offender Maintenance Program in the community” (Appeal Book Vol. 1, p. 75). With regard to medication, the Board commented as follows (Appeal Book Vol. 1, p. 75):
You show a dangerous and erratic attitude towards abiding by a medication regime to manage deviant sexual arousals. In a memo to file dated October 8, 2004, the psychiatrist noted that when you were confronted with situations where you perceived that you had little control or in which you felt things were going badly, you resorted to threats to stop your medication. This attitude indicates you have not internalized any commitment to managing your deviant arousals towards children, and use your potential for violence as a way to manipulate outcomes for your own benefit.
[21] The Board concluded by confirming the condition concerning medication, “for the reasons described in the [pre-release] decision” (Appeal Book Vol. 1, p. 76).
(b) The Federal Court decision
[22] The Federal Court determined that the question of the Board’s jurisdiction to impose the medication condition was to be reviewed on the standard of correctness. Relying in large part on the analysis provided in Normandin v. Canada, [2005] 2 F.C.R. 373 (F.C.), aff’d [2006] 2 F.C.R. 112 (F.C.A.) and in R. v. V.M., [2003] O.T.C. 97 (Ont. Sup. Ct.), the Applications Judge concluded that the Board’s jurisdiction under subsection 134.1(2) of the CCRA includes the power to impose a medical treatment condition in a long-term supervision order when the Board considers such a condition to be reasonable. In the appellant’s case, the Applications Judge noted, the Board found that the medical treatment would reduce the appellant’s risk to reoffend.
[23] The Applications Judge then considered whether the medical treatment condition violated the appellant’s rights under section 7 of the Charter. The Applications Judge concluded that the condition at issue “may violate the principle of fundamental justice that individuals should be free from unwanted medical treatment” (Reasons, para. 88). By virtue of the condition, the Applications Judge reasoned, the appellant is forced to choose between his right to security of the person and his liberty interest. The Applications Judge therefore concluded that the condition constitutes a prima facie violation of the appellant’s section 7 Charter rights, as “[t]he choice between the losses of section 7 Charter rights is not a choice that the State should normally be imposing on an individual” (Reasons, para. 88).
[24] However, the Applications Judge was satisfied that the section 7 violation was justified under section 1, as in his view the protection of the public provides the required pressing and substantial objective, the condition in question is rationally connected to this objective, and the condition also minimally impairs the appellant’s section 7 rights. The Applications Judge noted in particular that “it is highly unlikely that the Applicant would have gained supervised release without the condition that he takes medication as prescribed by a physician” (Reasons, para. 89).
[25] The Applications Judge thus declined to interfere with the condition set by the Board. I agree with this decision, but for slightly different reasons on one aspect of the decision.
VI. Analysis
(A) Does the National Parole Board have statutory jurisdiction to impose, on a long-term offender subject to a long-term supervision order after the expiry of his warrant of committal, a special condition to take medication as prescribed by a physician?
[26] This Court must first consider whether, at the administrative law level, the Board possesses the statutory jurisdiction to impose the condition at issue. In other words, apart from the question of Charter rights, does the condition fall within the jurisdiction of the Board? If the Board is found to have acted within its administrative law jurisdiction, this Court must then consider whether the condition is nevertheless inconsistent with the Charter (Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at paras. 31-33).
[27] As the Applications Judge rightly noted, the applicable standard of review is correctness. The question of the Board’s administrative law jurisdiction to impose the condition at issue calls for an interpretation of the applicable statutory provisions. This is a question of pure law, which the Court is in a better position to decide than the Board. While the Board is entitled to deference in its determination of the conditions necessary to fulfil the purposes of the CCRA in relation to a particular offender, its jurisdiction to impose any given condition must be correctly established.
[28] The scope of the Board’s jurisdiction to impose conditions on long-term offenders is set out in subsection 134.1(2) of the CCRA, which for convenience’s sake I reproduce again:
134.1 (2) The Board may establish conditions for the long-term supervision of the offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender.
134.1 (2) La Commission peut imposer au délinquant les conditions de surveillance qu’elle juge raisonnables et nécessaires pour protéger la société et favoriser la réinsertion sociale du délinquant.
[Emphasis added.]
[29] It is clear that Parliament intended to grant the Board a broad discretion to set conditions for the long-term supervision of offenders such as the appellant. It is also clear that the statute does not expressly confer upon the Board the jurisdiction to impose medical treatment conditions. The appellant argues that there exists a common law right to refuse medical treatment, and therefore, in the absence of an express conferral of jurisdiction on the Board, the power to impose medical treatment conditions was not properly conferred on the Board.
[30] The proper approach to statutory interpretation is well-established, as Sharlow J.A. observed in Rooke v. Minister of National Revenue (2002), 295 N.R. 125 (F.C.A.) at para. 10:
10 The principles to be applied in interpreting a statute have been stated many times, most recently by the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex, [2002] S.C.J. No. 43, 2002 SCC 42, at paragraph 26:
In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: see, for example, Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, at p. 578, per Estey J.; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3, at p. 17; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 25; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 26; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33, per McLachlin C.J.; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 1, 2002 SCC 3, at para. 27. I note as well that, in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
The suitability of this approach to statutory interpretation was also recently reaffirmed by the Supreme Court of Canada in Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, a case involving the interpretation of the jurisdiction of the British Columbia Review Board to set conditions under Part XX.1 of the Criminal Code, concerning persons found not criminally responsible on account of mental disorder.
[31] The interpretation of subsection 134.1(2) must therefore start with an analysis of the purpose and object of the long-term supervision order, as established by the CCRA and Part XXIV of the Criminal Code.
[32] The object of the statutory regime for long-term offenders established by Part XXIV of the Criminal Code was considered by the Supreme Court of Canada in R. v. Johnson, [2003] 2 S.C.R. 357. The Court concluded that “Parliament did not intend the dangerous offender provisions and the long-term offender provisions to be considered in isolation of one another” (para. 39). Interpreting these provisions together, the Court noted (at para. 30-31) their potential overlapping application. Almost all dangerous offenders will satisfy the first two criteria for long-term offender designation set out in subsection 753.1(1), that is, facing a sentence of two years or more of imprisonment, and posing a substantial risk of re-offending, but only a smaller group of offenders will satisfy the third condition, namely offering a reasonable possibility of eventual control of risk. According to the Court, this reasonable possibility of eventual control of the risk in the community is a defining feature of the long-term supervision provisions:
The very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses – and to do so without resort to the blunt instrument of indeterminate detention. If the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention. (para. 32)
[33] More recently, in Normandin v. Canada, [2006] 2 F.C.R. 112, this Court articulated a similar view of the purpose of the long-term supervision provisions (at para. 40):
Before this scheme [for long-term offenders] was established, a sexual offender could be sentenced as a dangerous offender for an indefinite period or a longer prison sentence. The scheme established by Parliament for long-term offenders within the community is a more flexible scheme that is more beneficial for them. Its purpose is to enhance the offender’s social integration but without compromising the protection of society and the victims.
[34] The stated purpose and guiding principles enunciated in sections 100 and 101 of the CCRA, which are expressly made applicable to long-term supervision orders by virtue of section 99.1, support this interpretation. Section 100 states that the purpose of long-term supervision is “to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens”.
[35] Among the mandatory principles provided in section 101 to guide the Board in its decisions concerning release, paragraph 101(a) states that “the protection of society [shall] be the paramount consideration in the determination of any case”, and paragraph 101(d) states that “parole boards [shall] make the least restrictive determination consistent with the protection of society”. .
[36] In my view, the purpose of the long-term offender provisions is therefore clear. An offender whose conduct or behaviour is not “pathologically intractable”, in that there is a reasonable possibility that the offender can eventually reach a stage where, although not curable, his or her risk can be controlled in the community, will now qualify for long-term offender status. Under the former provisions, such an offender – for example, a repeat sexual offender – might have been found to be a dangerous offender. Long-term supervision orders thus pursue two main objects: first, protecting society, and second, enhancing the social reintegration of long-term offenders, whenever possible, by granting release under the least restrictive conditions consistent with the protection of society.
[37] The jurisdiction conferred on the Board by virtue of the specific wording of subsection 134.1(2) must be read against this backdrop of general statutory purpose. As this Court held in Normandin, supra, the plain wording of subsection 134.1(2) “grants the Board a general power to set conditions for long-term offenders without restrictions as to their content and nature other than the requirement that they be necessary, reasonable and limited in duration” (para. 39). The jurisdiction granted to the Board by subsection 134.1(2) is necessarily “a broad and flexible discretionary authority” (Normandin, para. 44), designed to enable the Board to achieve the objectives of the long-term offender provisions.
[38] The interpretation suggested by the appellant would disregard the clearly-stated objectives of this statutory scheme. If the statutory purposes of protecting society and enabling social reintegration of long-term offenders through supervised release with the least restrictive conditions possible are to be achieved, the Board must possess the power to impose a medical treatment condition in appropriate circumstances. Such conditions, when necessary to control the offender’s risk of re-offending, fall within the Board’s jurisdiction under subsection 134.1(2) of the CCRA to impose “reasonable and necessary” conditions.
[39] This broad interpretation of the Board’s jurisdiction under subsection 134.1(2) also represents the interpretation most favourable to accuseds in a global sense. As Décary J.A. observed in Cartier v. Canada (Attorney General), [2003] 2 F.C. 317 at para. 19, this principle of statutory interpretation is somewhat modified in the penal context of conditional release:
19 The proposition that in the event of ambiguity the Act should be interpreted in the offender’s favour is correct in so far is it means that once society’s protection is guaranteed the Board should, in a given case, choose the solution which is less injurious to the offender’s freedom. However, it is incorrect in so far as the Act has to ensure at the outset that society is protected: if there is any ambiguity in that regard, it will operate in favour of the public interest rather than in the interest of the offender. . .
An interpretation of subsection 134.1(2) that enables the Board to impose a medical treatment condition in appropriate circumstances ensures that an accused will be given the benefit of available treatment options, both when a Court is considering whether the long-term offender designation is appropriate in a particular case, and later when the Board is considering what conditions are necessary to manage the offender’s risk. The Board’s ability to consider such treatment options ensures at each stage of the sentencing process that an offender will have access to the least restrictive sanction possible, consistent with the protection of the public. Thus, contrary to the appellant’s assertion, the absence of an express conferral of jurisdiction with respect to medical treatment conditions in subsection 134.1(2) does not preclude the Board from imposing such conditions.
[40] The Board is not in this case ordering the forcible administration of medication to the appellant. The common law right concerning non-consensual medical treatment (Fleming v. Reid (1991), 4 O.R. (3d) 74 at 84; Starson v. Swayze, [2003] 1 S.C.R. 722 at para. 75) is therefore not being violated in this case. The appellant is at liberty to refuse to take the prescribed medication. However, if he does, there will be consequences for such a refusal: the appellant will be in breach of his long-term supervision order and therefore liable to commitment under section 135.1 of the CCRA or imprisonment pursuant to section 753.3 of the Criminal Code. The basis and authority for these consequences is the appellant’s status as a long-term offender, which status in turn was predicated on the Court’s finding that the appellant satisfied the criteria prescribed by subsection 753.1(1).
[41] As a long-term offender, the appellant “retain[s] the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence” (CCRA, s.4(e)). In my view, the appellant’s complaint in respect of the medical treatment condition imposed by the Board relates to a restriction necessarily consequent upon his sentence as a long-term offender. As a long-term offender, the appellant has been found to pose a substantial risk of re-offending, but one that has been judged reasonably capable of eventual control in the community. To fulfil the dual purposes with which it is charged under the long-term offender provisions, the Board must be able to consider all reasonable conditions that might be reasonably capable of rendering the risk posed by him eventually manageable in the community. In the appellant’s case, the Board has concluded – significantly, only after the appellant breached a previous long-term supervision order that did not include a medication condition – that medication is necessary to control the risk he poses. If the appellant does not want to take this medication, he may choose to refuse, but he thereby chooses also to face the consequences flowing from that decision, given his status as a long-term offender.
[42] Like the British Columbia Court of Appeal in R. v. Goodwin (2002),168 C.C.C. (3d) 14 at para. 32, I would therefore endorse the following analysis of Mr. Justice Hill in R. v. Payne, [2001] O.T.C. 15 (Ont. Sup. Ct.) at para. 138:
138 In my view, an offender on conditional release by way of a long-term supervision order may be compelled by a term of the order to undertake treatment and related pharmaceutical intervention where essential to management of the accused’s risk of re-offending. In other words, the offender’s consent to such a condition is not required. Should the offender breach terms of the order respecting treatment or medication, he or she is subject to apprehension with suspension of the order pursuant to s. 135.1 of the Act or to arrest and prosecution pursuant to s. 753.3(1) of the Code. The entire object of the long-term offender regime would be undermined by providing the offender the ability to defeat risk management. Accordingly, mandatory treatment and medication conditions in an order are a proportionate response to protecting the public from a person who, by definition, is a substantial risk to reoffend.
[43] The appellant argues that this Court should follow the approach adopted in R. v. Kieling (1991), 64 C.C.C. (3d) 124, in which the Saskatchewan Court of Appeal concluded that the Court had no jurisdiction to impose medical treatment as a condition of probation under then paragraph 737(2)(h) of the Criminal Code (now substantially re-worded as paragraph 732.1(3)(h)). In my view, however, Kieling is easily distinguishable from the current appeal. First, the principles of sentencing applicable to an offender on probation are different from those applicable to long-term offenders, for whom protection of the public is the paramount consideration. Second, the wording of the jurisdiction-granting provision at issue in Kieling is materially different from subsection 134.1(2) of the CCRA.
[44] At the time of Kieling, the Court was empowered under then subsection 737(2) to specify in a probation order any of the conditions listed in paragraphs 737(2)(a) through (h). Paragraph 737(2)(h) further empowered the Court to set in probation orders “such other reasonable conditions as the court considers desirable for securing the good conduct of the accused and for preventing a repetition by him of the same offence or the commission of other offences”. The Saskatchewan Court of Appeal interpreted the words “such other reasonable conditions” as restricted by the common meaning of the conditions listed in the previous paragraphs, which all referred to either affirmative conduct or abstention from conduct, and of which none presented any risk to the accused. Therefore, compelling the accused to take medication as a condition of probation was found not to be within the jurisdiction of the judge. However, subsection 134.1(2), the jurisdiction-granting provision in the current appeal, does not employ the “such other” wording, nor any other restrictive wording of this kind. In my opinion, therefore, the Kieling precedent does not assist the appellant.
[45] I note that the appellant is not in this appeal challenging the specific medication prescribed by his physicians, or arguing that another form of medical or other treatment would be more effective or less injurious. He is also not contesting the Board’s determination concerning the reasonableness or necessity of a medical treatment condition in his particular case. If these issues had been raised in this case, the analysis might have proceeded differently, and according to a more deferential standard of review. However, the appellant’s sole assertion in this appeal is that a medical treatment condition is, in all cases of long-term supervision, outside the statutory jurisdiction of the Board. The particularities of the appellant’s circumstances – his history and risk profile, the medical regimen prescribed to him, its effectiveness and side effects – have not been raised here and are therefore largely irrelevant to this appeal as it has been argued.
[46] I conclude that the Applications Judge correctly decided that the condition at issue falls within the jurisdiction of the Board under subsection 134.1(2) of the CCRA. Accordingly, this ground of appeal fails.
(B) Does the special condition to take medication as prescribed by a physician constitute an infringement of the appellant’s rights under section 7 of the Canadian Charter of Rights and Freedoms?
[47] Having concluded that the Board acted within its jurisdiction in imposing the medical treatment condition at issue, this Court must now consider whether the imposition of that condition is nevertheless a breach of the appellant’s Charter rights.
[48] The three-stage approach for determining whether there has been a breach of section 7 was set out as follows by the Supreme Court of Canada in R. v. White, [1999] 2 S.C.R. 417 at para. 38:
Where a court is called upon to determine whether s. 7 has been infringed, the analysis consists of three main stages, in