Winko v. British Columbia (Forensic Psychiatric Institute)

Winko v. British Columbia (Forensic Psychiatric Institute)
Collection
Supreme Court Judgments
Date
1999-06-17
Report
[1999] 2 SCR 625
Case number
25856
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 25856
Decision Content
Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625
Joseph Ronald Winko Appellant
v.
The Director, Forensic Psychiatric Institute, and
the Attorney General of British Columbia Respondents
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Canadian Mental Health Association,
Kenneth Samuel Cromie on behalf of the
Queen Street Patients’ Council and
Kevin George Wainwright Interveners
Indexed as: Winko v. British Columbia (Forensic Psychiatric Institute)
File No.: 25856.
1998: June 15, 16; 1999: June 17.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
Constitutional law -- Charter of Rights -- Fundamental justice -- Vagueness -- Improper onus -- Overbreadth -- Criminal Code providing for verdict of not criminally responsible on account of mental disorder -- Not criminally responsible accused can be absolutely discharged, conditionally discharged or detained -- Whether provisions infringe principles of fundamental justice -- Canadian Charter of Rights and Freedoms, s. 7 -- Criminal Code, R.S.C., 1985, c. C-46, s. 672.54 .
Constitutional law -- Charter of Rights -- Equality rights -- Mental disability -- Criminal Code providing for verdict of not criminally responsible on account of mental disorder -- Not criminally responsible accused can be absolutely discharged, conditionally discharged or detained -- Whether provisions infringe right to equality -- Canadian Charter of Rights and Freedoms, s. 15 -- Criminal Code, R.S.C., 1985, c. C‑46, s. 672.54 .
The appellant has a long history of mental illness and hospitalization, and has been diagnosed with chronic residual schizophrenia. In 1983 he was arrested for attacking two pedestrians on the street with a knife and stabbing one of them behind the ear. Prior to this incident he had been hearing voices. He was charged with aggravated assault, assault with a weapon, and possession of a weapon for purposes dangerous to the public peace. He was tried and found not criminally responsible (“NCR”). Under s. 672.54 of the Criminal Code , where a verdict of NCR on account of mental disorder has been rendered, the court or Review Board may direct that the accused be discharged absolutely, discharged subject to conditions or detained in custody in a hospital. The Review Board considered the appellant’s status in 1995 and, in a majority decision, granted him a conditional discharge. A majority of the Court of Appeal upheld the decision. The appellant subsequently challenged the constitutionality of the provisions of the Criminal Code dealing with the review of NCR accused before a different panel of the Court of Appeal. A majority of the panel found that the provisions did not violate s. 7 or s. 15(1) of the Canadian Charter of Rights and Freedoms .
Held: The appeal should be dismissed.
Per Lamer C.J. and Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.: In the spirit of supplanting the old stereotypes about mentally ill offenders, Part XX.1 of the Criminal Code supplements the traditional guilt-innocence dichotomy of the criminal law with a new alternative for NCR accused -- an alternative of individualized assessment to determine whether the person poses a continuing threat to society coupled with an emphasis on providing opportunities to receive appropriate treatment. Throughout the process the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1’s goals of public protection and fairness to the NCR accused.
Properly read, s. 672.54 does not create a presumption of dangerousness and does not, in its effect, impose a burden of proving lack of dangerousness on the NCR accused. The introductory part of s. 672.54 requires the court or Review Board to consider the need to protect the public from dangerous persons, together with the mental condition of the accused, his or her reintegration into society, and his or her other needs. The court or Review Board must then make the disposition “that is the least onerous and least restrictive to the accused”. Under s. 672.54(a), the court or Review Board must direct that the accused be discharged absolutely if it is of the opinion that “the accused is not a significant threat to the safety of the public”. This provision must be read with the preceding instruction that the court or Review Board must make the order that is the least onerous and least restrictive to the accused, and in light of the principle that the only constitutional basis on which the criminal law may restrict the liberty of an NCR accused is the protection of the public from significant threats to its safety. Read in this way, it becomes clear that unless it makes a positive finding on the evidence that the NCR accused poses a significant threat to the safety of the public, the court or Review Board must order an absolute discharge. This interpretation is supported by the principle that a statute should be read in a manner that supports compliance with the Charter .
On this interpretation of Part XX.1, the duties of a court or Review Board that is charged with interpreting s. 672.54 may, for practical purposes, be summarized as follows:
1. The court or Review Board must consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused. The court or Review Board is required in each case to answer the question: does the evidence disclose that the NCR accused is a “significant threat to the safety of the public”?
2. A “significant threat to the safety of the public” means a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying. The conduct giving rise to the harm must be criminal in nature.
3. There is no presumption that the NCR accused poses a significant threat to the safety of the public. Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat. The court or Review Board cannot avoid coming to a decision on this issue by stating, for example, that it is uncertain or cannot decide whether the NCR accused poses a significant threat to the safety of the public. If it cannot come to a decision with any certainty, then it has not found that the NCR accused poses a significant threat to the safety of the public.
4. The proceeding before the court or Review Board is not adversarial. If the parties do not present sufficient information, it is up to the court or Review Board to seek out the evidence it requires to make its decision. Where the court is considering the matter, it may find in such circumstances that it cannot readily make a disposition without delay and that it should be considered by the Review Board. Regardless of which body considers the issue, there is never any legal burden on the NCR accused to show that he or she does not pose a significant threat to the safety of the public.
5. The court or Review Board may have recourse to a broad range of evidence as it seeks to determine whether the NCR accused poses a significant threat to the safety of the public. Such evidence may include the past and expected course of the NCR accused’s treatment, if any, the present state of the NCR accused’s medical condition, the NCR accused’s own plans for the future, the support services existing for the NCR accused in the community, and the assessments provided by experts who have examined the NCR accused. This list is not exhaustive.
6. A past offence committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused continues to pose a significant risk to the safety of the public. However, the fact that the NCR accused committed a criminal act in the past may be considered together with other circumstances where it is relevant to identifying a pattern of behaviour, and hence to the issue of whether the NCR accused presents a significant threat to public safety. The court or Review Board must at all times consider the circumstances of the individual NCR accused before it.
7. If the court or Review Board concludes that the NCR accused is not a significant threat to the safety of the public, it must order an absolute discharge.
8. If the court or Review Board concludes that the NCR accused is a significant threat to the safety of the public, it has two alternatives. It may order that the NCR accused be discharged subject to the conditions the court or Review Board considers necessary, or it may direct that the NCR accused be detained in custody in a hospital, again subject to appropriate conditions.
9. When deciding whether to make an order for a conditional discharge or for detention in a hospital, the court or Review Board must again consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused, and make the order that is the least onerous and least restrictive to the NCR accused.
Section 672.54 does not violate the principles of fundamental justice guaranteed by s. 7 of the Charter . The phrase “significant threat to the safety of the public” satisfies the test of providing sufficient precision for legal debate and is therefore not unconstitutionally vague. Neither does s. 672.54 , as interpreted, improperly shift the burden to the NCR accused to prove that he or she does not pose a significant threat to public safety. Finally, the scheme is not overbroad, since it ensures that the NCR accused’s liberty will be trammelled no more than is necessary to protect public safety. In addition to the safeguards of the NCR accused’s liberty found in s. 672.54 , Part XX.1 further protects his or her liberty by providing for, at minimum, annual consideration of the case by the Review Board and by granting the NCR accused a right to appeal to the Court of Appeal a disposition made by a court or Review Board. If a court or Review Board fails to interpret and apply s. 672.54 correctly and unduly impinges on the NCR accused’s liberty, the NCR accused therefore has an appropriate remedy.
Section 672.54 of the Code does not infringe s. 15(1) of the Charter . A reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant, would not find these provisions to be discriminatory. They promote, rather than deny, the claimant’s right to be considered as an individual, equally entitled to the concern, respect and consideration of the law. While Part XX.1 of the Code may be seen as treating NCR accused differently from other accused persons on the basis of mental illness at the time of the criminal act, and the distinction is made on the basis of an enumerated ground, namely mental disability, the purported differential treatment is not discriminatory in that it does not reflect the stereotypical application of presumed group or personal characteristics, or otherwise violate s. 15(1) ’s guarantee that every individual is equally entitled to the law’s concern, respect, and consideration. The jurisprudence recognizes that discrimination may arise either from treating an individual differently from others on the basis of group affiliation, or from failing to do so. Different legal treatment reflecting the particular needs and circumstances of an individual or group not only may be justified, but may be required in order to fulfill s. 15(1) ’s purpose of achieving substantive equality. In its purpose and effect, Part XX.1 reflects the view that NCR accused are entitled to sensitive care, rehabilitation and meaningful attempts to foster their participation in the community, to the maximum extent compatible with the individual’s actual situation. Any restrictions on the liberty of NCR accused are imposed to protect society and to allow the NCR accused to seek treatment, not for penal purposes. This renders inapposite a mechanistic comparison of the duration of time for which criminally responsible and NCR accused may be confined.
Per L’Heureux-Dubé and Gonthier JJ.: Section 672.54 of the Criminal Code reflects the proper exercise by Parliament of its criminal law jurisdiction. Following Swain, the preventive jurisdiction of criminal law is triggered by the existence of a threat to public safety. Danger is the threshold, not significant danger. The opening paragraph of s. 672.54 sets out the rule governing the disposition to be made. First, the court or Review Board must take into consideration the need to protect the public from dangerous persons, the mental condition of the accused and the reintegration of the accused into society and the other needs of the accused. Second, the disposition is to be the least onerous and least restrictive possible to the accused. Section 672.54 (a) mandates absolute discharge if it is found that the NCR accused is “not a significant threat to the safety of the public” even though he or she is dangerous. The wording of the introductory paragraph and of s. 672.54 (a) on its face leads clearly to the conclusion that the test set out is a negative one. While the Criminal Code , like all legislation, ought to be interpreted in light of the Charter and the values it enshrines, courts ought not to depart from the “plain meaning” of the text in the absence of ambiguity.
While the need to protect the public from danger is an essential condition for imposing any restriction on the liberty interests of NCR accused and must be established, Parliament does not require a positive finding that the NCR accused is a significant threat to public safety to maintain some protective measures and justify a disposition that is the least onerous and restrictive to the accused other than absolute discharge. Section 672.54 (a) is phrased in such a way that the requirement for an absolute discharge only arises when the court or Review Board is of the opinion that the accused is not a significant threat. Parliament has envisaged two levels of dangerousness: dangerousness and significant threat to public safety. The court or Review Board must first make a positive finding of dangerousness, i.e., that the NCR accused is indeed a threat to public safety. If the court or Review Board finds that the accused is dangerous, it will then have to determine whether the accused is or is not a significant threat to public safety. A positive finding of such significant dangerousness need not be made as a condition precedent to ordering some measures of protection. Parliament has expressed, through the negative wording of s. 672.54 (a), that if the court or Review Board is unable to reach an opinion as to whether or not the threat posed by the accused is a significant one, it may maintain some protective measures pending further review of the case, by issuing the order that is the least onerous and least restrictive to the accused consistent with the evidence.
The impugned provisions do not violate s. 7 of the Charter . The process is inquisitorial, as opposed to adversarial, and therefore does not cast a burden on the NCR accused to prove his or her lack of dangerousness. Nor does s. 672.54 create a presumption of dangerousness. If the court or Review Board fails to conclude positively that the NCR accused is dangerous, it must grant an absolute discharge. While the principles of fundamental justice require a positive finding of dangerousness, they allow that uncertainties with respect to the extent of the threat posed by the accused be resolved in favour of the safety of the public. Public concern that an NCR accused not be free of all supervision until it is established that he or she is not a significant threat to the safety of the public is obvious and legitimate. While the making of dispositions pursuant to s. 672.54 affects individual liberty interests so as to engage s. 7 of the Charter , a closer consideration of the legislation reveals the minimal effect of s. 672.54 on the liberty interests of the NCR accused as well as the existence of solid procedural safeguards. The court or the Review Board engages in a risk-management exercise. Detention or confinement will constitute the appropriate disposition only when that will be the least onerous disposition possible. Section 672.54 is not overbroad precisely because it is tailored to fit the particular situation of the NCR accused. If punishment clearly cannot be one of the objectives of Part XX.1, then the correlative principle of proportionality cannot apply either. Part XX.1 adapts the criminal system to the mentally ill who are not responsible for their criminal acts. NCR accused are not sentenced because a sentence is appropriate neither for the NCR accused nor for the safety of the public. The sentence is replaced by the least onerous and restrictive disposition to the NCR accused which is appropriate to protect the public against NCR accused who are dangerous persons. Section 7 of the Charter allows for such a measured restriction on liberty in the interest of the public.
With respect to s. 15 of the Charter , McLachlin J.’s analysis was agreed with as equally applicable to the above reading of s. 672.54 (a). Part XX.1 of the Code does not violate the equality rights of NCR accused. When viewed as a whole, NCR accused are not disadvantaged as compared to dangerous offenders. Rather, Part XX.1 provides for the least restrictive intrusion with the liberty interests of the accused consistent with protecting public safety. No negative message is sent about the worth or value of NCR accused. On the contrary, Parliament acknowledges that the needs of the NCR accused ought to be addressed by the criminal law system and that traditional sentencing principles cannot apply to them. Parliament has sent a message that the assessment of the NCR accused is to be dealt with the utmost consideration and prudence. Numerous procedural safeguards are provided. Part XX.1 is the legislative expression of a careful reconciliation of the interests of the NCR accused and society.
Cases Cited
By McLachlin J.
Applied: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; disapproved: R. v. Hoeppner, [1999] M.J. No. 113 (QL); referred to: Bese v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 722; Orlowski v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 733; R. v. LePage, [1999] 2 S.C.R. 744; Orlowski v. British Columbia (Attorney-General) (1992), 75 C.C.C. (3d) 138; M‘Naghten’s Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Swain, [1991] 1 S.C.R. 933; Battlefords and District Co‑operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566; Re Rebic and The Queen (1986), 28 C.C.C. (3d) 154; Davidson v. British Columbia (Attorney-General) (1993), 87 C.C.C. (3d) 269; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Snell v. Farrell, [1990] 2 S.C.R. 311; R. v. Osolin, [1993] 4 S.C.R. 595; D.H. v. British Columbia (Attorney General), [1994] B.C.J. No. 2011 (QL); Chambers v. British Columbia (Attorney General) (1997), 116 C.C.C. (3d) 406; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Morales, [1992] 3 S.C.R. 711; R. v. Peckham (1994), 19 O.R. (3d) 766; R. v. Heywood, [1994] 3 S.C.R. 761; Vriend v. Alberta, [1998] 1 S.C.R. 493; M. v. H., [1999] 2 S.C.R. 3; Egan v. Canada, [1995] 2 S.C.R. 513; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Blackman v. British Columbia (Review Board) (1995), 95 C.C.C. (3d) 412; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.
By Gonthier J.
Disapproved: R. v. Hoeppner, [1999] M.J. No. 113 (QL); referred to: R. v. Swain, [1991] 1 S.C.R. 933; R. v. LePage (1997), 119 C.C.C. (3d) 193; R. v. Hebert, [1990] 2 S.C.R. 151; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. L. (D.O.), [1993] 4 S.C.R. 419; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Lyons, [1987] 2 S.C.R. 309; Attorney-General of Canada v. Pattison (1981), 59 C.C.C. (2d) 138; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Gladue, [1999] 1 S.C.R. 688; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; L’Hirondelle v. Forensic Psychiatric Institute (B.C.) (1998), 106 B.C.A.C. 9; R. v. Peckham (1994), 19 O.R. (3d) 766, leave to appeal denied, [1995] 1 S.C.R. ix; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Orlowski v. British Columbia (Attorney-General) (1992), 75 C.C.C. (3d) 138; R. v. Morales, [1992] 3 S.C.R. 711; R. v. Zeolkowski, [1989] 1 S.C.R. 1378; R. v. Barnier, [1980] 1 S.C.R. 1124; Winko v. Forensic Psychiatric Institute (B.C.) (1996), 79 B.C.A.C. 1; Davidson v. British Columbia (Attorney-General) (1993), 87 C.C.C. (3d) 269; R. v. Lewis (1999), 132 C.C.C. (3d) 163; British Columbia (Forensic Psychiatric Institute) v. Johnson, [1995] B.C.J. No. 2247 (QL); Blackman v. British Columbia (Review Board) (1995), 95 C.C.C. (3d) 412; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Oommen, [1994] 2 S.C.R. 507; Mitchell v. The Queen, [1976] 2 S.C.R. 570.
Statutes and Regulations Cited
Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, c. 43.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 15(1) .
Criminal Code, R.S.C., 1985, c. C-46 [am. 1991, c. 43], ss. 16(1), 614(2) [(formerly 542(2)) rep. idem], Part XX.1, 672.16, 672.17, 672.34, 672.38 [am. 1997, c. 18, s. 83], 672.39, 672.4(1), 672.41(1), 672.43, 672.45, 672.46, 672.47, 672.5, 672.54, 672.55, 672.63, 672.72, 672.81, 672.82(1), 718.1 [ad. c. 27 (1st Supp.), s. 156], Part XXIV, 761.
Inquiries Act, R.S.C., 1985, c. I-11, ss. 4 , 5 .
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APPEAL from a judgment of the British Columbia Court of Appeal (1996), 84 B.C.A.C. 44, 137 W.A.C. 44, 112 C.C.C. (3d) 31, 4 C.R. (5th) 376, 40 C.R.R. (2d) 122, [1996] B.C.J. No. 2262 (QL), finding s. 672.54 of the Criminal Code to be constitutional. Appeal dismissed.
David Mossop, for the appellant.
Harvey M. Groberman and Lisa J. Mrozinski, for the respondents.
Kenneth J. Yule and George G. Dolhai, for the intervener the Attorney General of Canada.
Eric H. Siebenmorgen and Riun Shandler, for the intervener the Attorney General for Ontario.
Pierre Lapointe, for the intervener the Attorney General of Quebec.
Janet L. Budgell and Jennifer August, for the intervener the Canadian Mental Health Association.
Paul Burstein and Leslie Paine, for the intervener Kenneth Samuel Cromie.
Malcolm S. Jeffcock, for the intervener Kevin George Wainwright.
The judgment of Lamer C.J. and Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by
//McLachlin J.//
McLachlin J. --
I. Introduction
1 In every society there are those who commit criminal acts because of mental illness. The criminal law must find a way to deal with these people fairly, while protecting the public against further harms. The task is not an easy one.
2 In 1991 Parliament provided its answer to this challenge: Part XX.1 of the Criminal Code, R.S.C., 1985, c. C-46 . The appellant Winko submits that Part XX.1 violates his rights to liberty, security of the person and equality under the Canadian Charter of Rights and Freedoms . The same issue is raised in the companion appeals of Bese v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 722, Orlowski v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 733, and R. v. LePage, [1999] 2 S.C.R. 744.
3 I conclude that Part XX.1 of the Criminal Code protects the liberty, security of the person, and equality interests of those accused who are not criminally responsible (“NCR”) on account of a mental disorder by requiring that an absolute discharge be granted unless the court or Review Board is able to conclude that they pose a significant risk to the safety of the public. It follows that Part XX.1 does not deprive mentally ill accused of their liberty or security of the person in a manner contrary to the principles of fundamental justice. Nor does it violate their right to equal treatment under the law.
II. Facts
4 At the time of the Review Board disposition under appeal, Mr. Winko was a 47-year-old, single, unemployed man living at the Hampton Hotel in downtown Vancouver, British Columbia. He had been diagnosed with the mental illness of chronic residual schizophrenia. Indeed, the appellant has a long history of mental illness and hospitalization. On July 6, 1983, when Mr. Winko was 35, he was arrested for attacking two pedestrians on the street with a knife and stabbing one of them behind the ear. Prior to this incident, Mr. Winko had been hearing voices which he thought were coming from pedestrians saying, “why don’t you go and grab a woman and do her some harm?”, “you are going to the West End to kill someone”, “you know you can’t kill a woman”, and “you are a coward”. Winko was charged and taken to the Forensic Psychiatric Institute (“FPI”), where he continued to report auditory and visual hallucinations. In due course he was charged with aggravated assault, assault with a weapon, and possession of a weapon for purposes dangerous to the public peace. He was tried and found not criminally responsible.
5 From the NCR verdict in 1984 until August 7, 1990, Mr. Winko was held at the FPI. He was considered institutionalized. After his release, he lived in a series of hotels in the downtown eastside area of Vancouver. On June 1, 1994, he failed to appear at his Review Board hearing at the appointed time. However, he came to the Review Board Office later in the day, dirty, malodorous and complaining of being harassed by people on the street. He was readmitted to the FPI on June 6, 1994. He was cooperative, took his medication, and recovered rapidly.
6 Mr. Winko was returned to the community on July 5, 1994. This time, he went to live at the Hampton Hotel, run by the Mental Patients Association. The hotel is staffed by professional mental health workers who encourage residents to live independently. They also encourage residents to take their medication and communicate any concerns to the treatment team assigned to the patient.
7 In September 1994, Mr. Winko once again missed a medication injection, due in part to the failure of his doctor to keep track of the injections (which resulted in no one reminding Mr. Winko of the need for treatment). This led to a recurrence of the voices, and Mr. Winko voluntarily returned to the FPI in October 1994. He recovered rapidly and soon returned to the Hampton Hotel, where he has resided ever since.
8 Mr. Winko’s residence at the Hampton Hotel has never presented any particular problems. In general he interacts well with the other residents at the hotel. Despite occasional supervised breaks from medication due to side-effects (the most recent break of 18 months occurring in 1994), he has never been physically aggressive to anyone since the offences of 1983.
9 Mr. Winko’s case illustrates many features often faced by a court or Review Board considering the status of an NCR accused: a concern, often based on events long past, requiring consideration of public safety before full release into society; a countervailing record of peaceful behaviour in more recent years; a medical record that indicates difficulties staying on medication and the possibility of recurrence of illness when lapses occur; and the fact that for most of his adult life, Mr. Winko has been subject to constraints on his liberty with no immediate prospect of release. This said, different cases present different scenarios. Sometimes the harm that leads to NCR status is as trivial as shoplifting. Sometimes it is as serious as homicide. Sometimes the accused has a record of perfect compliance with medication and medical directives. Sometimes compliance is a problem. Justice requires that the NCR accused be accorded as much liberty as is compatible with public safety. The difficulty lies in devising a rule and a system that permits this to be accomplished in each individual’s case.
III. Judgments Below
10 The Review Board considered Mr. Winko’s status on May 29, 1995. The Review Board consisted of three people: N. J. Prelypchan, who acted as chairperson, Susan Irwin, and Dr. A. Marcus, a psychiatrist. By a vote of two to one, the Review Board granted Mr. Winko a conditional discharge. Dr. Marcus voted in favour of an absolute discharge. The majority expressed the opinion that Mr. Winko could become a significant risk to public safety in “certain circumstances”, and suggested that a conditional discharge was consistent with the British Columbia Court of Appeal’s decision in Orlowski v. British Columbia (Attorney-General) (1992), 75 C.C.C. (3d) 138 (“Orlowski No. 1”). Ms. Irwin added: “I clearly acknowledge that there haven’t been any incidents of threat to other people.” Dr. Marcus, noting the absence of any evidence that Mr. Winko had been a danger to anyone since the index offence, concluded that there was “no indication . . . that he would relapse and continue to be or again commit an act which one could call a significant threat”.
11 On July 29, 1996, a majority of the British Columbia Court of Appeal upheld on its merits the Review Board’s decision to grant Mr. Winko a conditional discharge: (1996), 79 B.C.A.C. 1. Mr. Winko subsequently challenged the constitutionality of the provisions of the Criminal Code dealing with the review of NCR accused before a different panel of the Court of Appeal. A majority of that panel found that the provisions were constitutional and did not violate the Charter : (1996), 84 B.C.A.C. 44. Williams J.A., dissenting, found that the legislation imposed a burden of proof on the applicant contrary to s. 7 of the Charter that was not justified under s. 1 . Mr. Winko appeals to this Court seeking a declaration that the Criminal Code provisions are unconstitutional and an order that he be granted an unconditional release.
IV. The Statutory Provisions
12 The following provisions of the Criminal Code are at issue:
16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.
672.38 (1) A Review Board shall be established or designated for each province to make or review dispositions concerning any accused in respect of whom a verdict of not criminally responsible by reason of mental disorder or unfit to stand trial is rendered, and shall consist of not fewer than five members appointed by the lieutenant governor in council of the province.
(2) A Review Board shall be treated as having been established under the laws of the province.
(3) No member of a Review Board is personally liable for any act done in good faith in the exercise of the member’s powers or the performance of the member’s duties and functions or for any default or neglect in good faith in the exercise of those powers or the performance of those duties and functions.
672.39 A Review Board must have at least one member who is entitled under the laws of a province to practise psychiatry and, where only one member is so entitled, at least one other member must have training and experience in the field of mental health, and be entitled under the laws of a province to practise medicine or psychology.
672.4 (1) Subject to subsection (2), the chairperson of a Review Board shall be a judge of the Federal Court or of a superior, district or county court of a province, or a person who is qualified for appointment to, or has retired from, such a judicial office.
672.41 (1) Subject to subsection (2), the quorum of a Review Board is constituted by the chairperson, a member who is entitled under the laws of a province to practise psychiatry, and any other member.
672.54 Where a court or Review Board makes a disposition pursuant to subsection 672.45(2) or section 672.47, it shall, taking into consideration the need to protect the public from dangerous persons, 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:
(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;
(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or
(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.
672.81 (1) A Review Board shall hold a hearing not later than twelve months after making a disposition and every twelve months thereafter for as long as the disposition remains in force, to review any disposition that it has made in respect of an accused, other than an absolute discharge under paragraph 672.54 (a).
(2) The Review Board shall hold a hearing to review any disposition made under paragraph 672.54 (b) or (c) as soon as is practicable after receiving notice that the person in charge of the place where the accused is detained or directed to attend
(a) has increased the restrictions on the liberty of the accused significantly for a period exceeding seven days; or
(b) requests a review of t