R. v. Demers

R. v. Demers
Collection
Supreme Court Judgments
Date
2004-06-30
Neutral citation
2004 SCC 46
Report
[2004] 2 SCR 489
Case number
29234
Judges
McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie; Fish, Morris J.
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 29234
Decision Content
R. v. Demers, [2004] 2 S.C.R. 489, 2004 SCC 46
Réjean Demers Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Canada and
Attorney General of Ontario Interveners
and
Tribunal administratif du Québec, section des affaires
sociales, and Centre hospitalier Robert-Giffard Mis en cause
Indexed as: R. v. Demers
Neutral citation: 2004 SCC 46.
File No.: 29234.
2004: January 21; 2004: June 30.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ.
on appeal from the superior court of quebec
Constitutional law — Division of powers — Criminal law — Permanently unfit accused who do not pose a significant threat to public safety — Accused unfit to stand trial on account of permanent mental disability — Whether ss. 672.33, 672.54 and 672.81(1) of Criminal Code ultra vires Parliament — Constitution Act, 1867, s. 91(27) — Criminal Code, R.S.C. 1985, c. C-46, ss. 672.33 , 672.54 , 672.81(1) .
Constitutional law — Charter of Rights — Liberty — Fundamental justice — Presumption of innocence — Overbroad legislation — Accused unfit to stand trial on account of permanent mental disability — Absolute discharge not available to permanently unfit accused who do not pose a significant threat to public safety — Courts and Review Boards having no power to order psychiatric assessment of unfit accused after initial evaluation in order to adapt disposition to his current circumstances — Whether ss. 672.33, 672.54 and 672.81(1) of Criminal Code infringe s. 7 of Canadian Charter of Rights and Freedoms — If so, whether infringement justifiable under s. 1 of Charter — Criminal Code, R.S.C. 1985, c. C-46, ss. 672.33 , 672.54 , 672.81(1) .
The accused, who is moderately intellectually handicapped, was declared unfit to stand trial on charges of sexual assault. He remained in hospital until he was discharged, subject to conditions, three months later by a Review Board acting under ss. 672.47 and 672.54 of the Criminal Code . The result of the combined operation of ss. 672.33 , 672.54 and 672.81(1) is that an accused found unfit to stand trial remains in the “system” established under Part XX.1 of the Code until either he becomes fit to stand trial or the Crown fails to establish a prima facie case against him. An absolute discharge is not available. People like the accused who are permanently unfit and could never stand trial are subject to indefinite appearances before the Review Board and to the exercise of its powers. The Quebec Superior Court refused to grant the accused a stay of proceedings and upheld the constitutionality of s. 672.54 . In this Court, the accused challenged the constitutional validity of ss. 672.33, 672.54 and 672.81(1) of the Code under the Constitution Act, 1867 's division of powers and the Canadian Charter of Rights and Freedoms .
Held: The appeal should be allowed. The impugned provisions are unconstitutional.
Per McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, Deschamps and Fish JJ.: The impugned provisions are intra vires Parliament. The pith and substance of Part XX.1 of the Criminal Code is revealed by its twin goals of protecting the public and treating the mentally ill accused fairly and appropriately. While the exercise of criminal power over accused found “not criminally responsible on account of mental disorder” can only be justified under the protective branch of criminal law, the situation is different in respect of accused found unfit to stand trial. Unless he is found to be dangerous, the criminal law’s jurisdiction over the unfit accused does not stem from that branch of the criminal law. Rather, the criminal justice system maintains jurisdictional control over the accused found unfit to stand trial because that person is subject to a criminal accusation and pending proceedings. As long as this accusation is maintained, it is not necessary to consider the dangerousness of the accused or the protection of the public because other considerations justify Parliament’s jurisdiction in regard to accused found unfit to stand trial, namely its jurisdiction over criminal procedure. The pith and substance of the impugned provisions thus falls within both the preventive and criminal procedure branches of the criminal law. It should also be noted that laws dealing with the unfit accused have long been accepted as valid criminal law. Lastly, where, as here, one level of government supports the constitutionality of another level’s legislation, a court should be cautious before finding the impugned provision ultra vires.
With respect to s. 7 of the Charter , the deprivation of the unfit accused’s liberty accords with the presumption of innocence as a principle of fundamental justice. The Review Board proceedings under ss. 672.54 and 672.81(1) do not involve a determination of guilt or innocence. Nor do they presume that the unfit accused is dangerous. They simply require the Review Board to perform an assessment of the accused and impose the least onerous condition on his liberty. The unavailability of an absolute discharge relates to the fact that the accused has not been tried, rather than the presumption that the accused is guilty or dangerous. Section 672.33 does not presume guilt, but rather aims at preventing abuses of the regime under Part XX.1 by providing that the accused is acquitted when the evidence presented to the court is insufficient to put him on trial.
However, it is a well‑established principle of fundamental justice that criminal legislation must not be overbroad. The least onerous disposition under s. 672.54 (a), absolute discharge, is not available to the accused found unfit to stand trial. This is justified in the case of an unfit accused who does not suffer from a permanent mental disorder, because the means chosen by Parliament significantly advance the goals of assessment and treatment, which can result in rendering the accused fit for trial, and the goal of protecting the public. In the case of a permanently unfit accused, a trial is not a possibility and the objective of rendering the accused fit for trial does not apply. Consequently, the continued subjection of an unfit accused to the criminal process, where there is clear evidence that capacity will never be recovered and there is no evidence of a significant threat to public safety, makes the law overbroad because the means chosen are not the least restrictive of the unfit person’s liberty and are not necessary to achieve the state’s objective. The impugned legislation thus infringes the s. 7 liberty of permanently unfit accused who do not pose a significant threat to society.
The overbroad legislation cannot be upheld under s. 1 of the Charter , because its overbreadth causes it to fail the minimal impairment branch of the s. 1 analysis. Part XX.1 deals unfairly with the permanently unfit accused who are not a significant threat to public safety. The regime does not provide for an end to the prosecution. Permanently unfit accused are subject to indefinite conditions on their liberty, of varying degrees of restrictiveness, resulting from the disposition orders of the Review Board or the court. Psychiatric evaluations are necessary to assess the mental condition of the permanently unfit accused in order to impose the least restrictive conditions, if any, on his liberty. The inability of courts and Review Boards to order such an assessment after the initial evaluation of the accused makes it impossible to ensure that the disposition under s. 672.54 or any review pursuant to s. 672.81(1) is tailored to the unfit accused’s current circumstances.
The appropriate remedy in this case is a declaration of invalidity of the impugned provisions, suspended for a 12‑month period to give Parliament time to amend the legislation. Such amendments should allow courts, under s. 672.54 , to absolutely discharge a permanently unfit accused, and should also allow courts or Review Boards to order psychiatric evaluations if no current evaluations are available to them. Although the rule in Schachter precludes courts from granting an individual remedy under s. 24(1) of the Charter during the period of suspended invalidity, it does not stop them from awarding prospective remedies under s. 24(1) in conjunction with remedies under s. 52 of the Constitution Act, 1982 . Therefore, if Parliament does not amend the invalid legislation within one year, those permanently unfit accused who do not pose a significant threat to the safety of the public can ask for a stay of proceedings.
Per LeBel J.: The impugned provisions are ultra vires Parliament. The criminal procedure power under s. 91(27) of the Constitution Act, 1867 does not grant Parliament the authority to supervise and detain accused who are permanently unfit to stand trial. The division of powers should be read in light of the principles that animate the whole of our Constitution, including the principle of respect for human rights and freedoms. The human rights and freedoms expressed in the Charter , while they do not formally modify the scope of the powers in ss. 91 and 92 of the Constitution Act, 1867 , provide a new lens through which those powers should be viewed. In choosing one among several possible interpretations of powers that implicate human rights, the interpretation that best accords with the imperatives of the Charter should be adopted. In this case, the pith and substance of Part XX.1 in relation to accused found unfit to stand trial is the treatment and supervision of these accused as well as the protection of the public while they remain unfit and subject to an outstanding criminal charge. Insofar as the aim of Part XX.1 is concerned with the treatment and supervision of a temporarily unfit accused and the protection of the public during the accused’s limited period of unfitness, its ultimate aim is to try the accused once he becomes fit. This falls squarely within the ambit of the criminal procedure power. However, where the accused is permanently unfit to stand trial, the overriding goal of Part XX.1 is absent and Parliament loses jurisdiction. A person cannot be subject to state control and have limits imposed on his liberty based on the criminal procedure power absent progress towards the adjudication of his legal culpability. This is a fundamental human right affirmed in ss. 7 and 11 (b) of the Charter . The continued supervision, detention or conditional liberty of a permanently unfit accused can relate only to the mental health of the individual, and this is considered to be within the provincial jurisdiction under ss. 92(7) , 92(13) and 92(16) of the Constitution Act, 1867 . Further, this approach has the salutary effect of respecting and enhancing the permanently unfit accused’s human dignity.
There is agreement with the majority’s conclusion regarding the violation of s. 7 of the Charter .
An application for a stay resulting from a violation of an accused’s right under s. 11 (b) to a trial within a reasonable time would be available to both dangerous and non‑dangerous permanently unfit accused, as our jurisprudence has made no distinction between an accused’s character or alleged propensity for violence in determining whether s. 11 (b) has been violated and whether a stay should issue under s. 24(1) of the Charter .
With respect to a remedy, ss. 672.33 , 672.54 and 672.81(1) of the Criminal Code should be declared invalid pursuant to s. 52 of the Constitution Act, 1982 and the declaration should be suspended for 12 months. Further, the accused and all permanently unfit accused who do not pose a significant threat to public safety should be granted a stay of proceedings within 30 days under s. 24(1) of the Charter for the breach of their s. 7 rights. This is an appropriate case to combine remedies under ss. 24(1) and 52 , because slavish adherence to the rule in Schachter would result in an injustice. This is not a situation in which a s. 24 remedy would only duplicate the relief flowing from the s. 52 remedy. From the perspective of the public role of the Charter , a suspended declaration of invalidity under s. 52 ensures future compliance with the Constitution Act, 1867 by Parliament and also protects the public from the immediate release of potentially dangerous persons, while giving time to both Parliament and the provincial legislatures to amend their respective legislation. From the perspective of the accused, however, a suspended declaration of invalidity gives him no immediate redress and the violation of his liberty interest under s. 7 continues. In light of the seriousness of the violation and the Review Board’s recent finding that the accused was not dangerous enough to warrant hospitalization, a stay to be granted within 30 days would effectively redress the wrong he has suffered. The 30‑day period is sufficient to allow the provincial health authorities to seek a protective order under their mental health regime, if necessary. There is no question in this case that the Court can effectively implement the suspended declaration of invalidity or the stay.
Cases Cited
By Iacobucci and Bastarache JJ.
Applied: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; R. v. Heywood, [1994] 3 S.C.R 761; Schachter v. Canada, [1992] 2 S.C.R. 679; discussed: R. v. Swain, [1991] 1 S.C.R. 933; referred to: R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569, 2002 SCC 17; R. v. Morgentaler, [1993] 3 S.C.R. 463; Attorney General of Quebec v. Lechasseur, [1981] 2 S.C.R. 253; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12; MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, 2003 SCC 3; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Charemski, [1998] 1 S.C.R. 679; United States of America v. Shephard, [1977] 2 S.C.R. 1067; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. Power, [1994] 1 S.C.R. 601; Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65; Vriend v. Alberta, [1998] 1 S.C.R. 493; M. v. H., [1999] 2 S.C.R. 3; Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Conway, [1989] 1 S.C.R. 1659.
By LeBel J.
Not followed: Schachter v. Canada, [1992] 2 S.C.R. 679; distinguished: R. v. Swain, [1991] 1 S.C.R. 933; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; referred to: Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, aff’d [1951] A.C. 179 (sub nom. Canadian Federation of Agriculture v. Attorney-General for Quebec); Morgentaler v. The Queen, [1976] 1 S.C.R. 616; R. v. Morgentaler, [1993] 3 S.C.R. 463; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Di Iorio v. Warden of the Common Jail of the City of Montreal, [1978] 1 S.C.R. 152; Ritcey v. The Queen, [1980] 1 S.C.R. 1077; Goodyear Tire and Rubber Co. of Canada Ltd. v. The Queen, [1956] S.C.R. 303; R. v. Lyons, [1987] 2 S.C.R. 309; United States of America v. Shephard, [1977] 2 S.C.R. 1067; R. v. Monteleone, [1987] 2 S.C.R. 154; Edwards v. Attorney-General for Canada, [1930] A.C. 124; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Adler v. Ontario, [1996] 3 S.C.R. 609; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling, [1957] S.C.R. 285; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; Schneider v. The Queen, [1982] 2 S.C.R. 112; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Morin, [1992] 1 S.C.R. 771; Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1998] 1 S.C.R. 3; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Bain, [1992] 1 S.C.R. 91.
Statutes and Regulations Cited
Canadian Bill of Rights, S.C. 1960, c. 44 .
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (b), (d), 15(1) , 24(1) .
Constitution Act, 1867, ss. 91(27) , 92(7) , (13) , (16) .
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C. 1985, c. C‑46 [am. 1991, c. 43], ss. 271(1)(a), 614(2), Part XX.1, 672.11, 672.22, 672.23, 672.24(1) [am. 1997, c. 18, s. 82], 672.26, 672.33, 672.34, 672.45, 672.47, 672.48, 672.54, 672.55 [idem, s. 86], 672.58 to 672.62, 672.81.
Authors Cited
Black, Charles L., Jr. Structure and Relationship in Constitutional Law. Woodbridge, CT: Ox Bow Press, 1983 (1985 reprint).
Bobbitt, Philip. Constitutional Fate: Theory of the Constitution. New York: Oxford University Press, 1982.
Canada. House of Commons. Response to the 14th Report of the Standing Committee on Justice and Human Rights: Review of the Mental Disorder Provisions of the Criminal Code. Ottawa, Government of Canada, November 2002.
Chayes, Abram. “The Role of the Judge in Public Law Litigation” (1976), 89 Harv. L. Rev. 1281.
Elliot, Robin. “References, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2001), 80 Can. Bar Rev. 67.
Laskin, Bora. “An Inquiry into the Diefenbaker Bill of Rights” (1959), 37 Can. Bar Rev. 77.
MacKay, A. Wayne. “The Supreme Court of Canada and Federalism: Does\Should Anyone Care Anymore?” (2001), 80 Can. Bar Rev. 241.
Pilkington, M. L. “Monetary Redress for Charter Infringement”, in Robert J. Sharpe, ed., Charter Litigation. Toronto: Butterworths, 1987, 307.
Raz, Joseph. The Concept of a Legal System: An Introduction to the Theory of Legal System, 2nd ed. Oxford: Clarendon Press, 1980.
Schneider, Richard D. “Mental Disorder in the Courts: Absolute Discharge for Unfits?” (2000), 21 For the Defence 36.
Scott, Francis Reginald. Civil Liberties & Canadian Federalism. Toronto: University of Toronto Press, 1959.
Shandal, Vinay. “Combining Remedies Under Section 24 of the Charter and Section 52 of the Constitution Act, 1982 : A Discretionary Approach” (2003), 61 U.T. Fac. L. Rev. 175.
Weiler, Paul C. “The Supreme Court and the Law of Canadian Federalism” (1973), 23 U.T.L.J. 307.
APPEAL from a judgment of the Quebec Superior Court, [2002] Q.J. No. 590 (QL), J.E. 2002‑976, dismissing the accused’s motion for a stay of proceedings and for a declaration that s. 672.54 of the Criminal Code is unconstitutional. Appeal allowed.
Suzanne Gagné and Stéphane Lepage, for the appellant.
Joanne Marceau, for the respondent.
Michel F. Denis and Yvan Poulin, for the intervener the Attorney General of Canada.
Lucy Cecchetto and Shaun Nakatsuru, for the intervener the Attorney General of Ontario.
The judgment of McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, Deschamps and Fish JJ. was delivered by
IACOBUCCI and BASTARACHE JJ. —
I. Introduction
1 This appeal raises the issue of the constitutional validity of ss. 672.33 , 672.54 and 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), with respect to accused persons who are unfit to stand trial. More specifically, the questions raised are whether the regime set out by Parliament in Part XX.1 Cr. C. is unconstitutional under the division of powers analysis or under ss. 7 , 11 (b), 11 (d) or 15(1) of the Canadian Charter of Rights and Freedoms when applied to persons who have been found permanently unfit to stand trial.
2 We have found that the application of the impugned provisions to persons found unfit to stand trial, on account of permanent or temporary mental disorder, falls within the legislative jurisdiction of the Parliament of Canada. However, we have also found that persons who are permanently unfit to stand trial and do not pose a significant threat to public safety suffer a breach of their liberty interest under s. 7 of the Charter because they are subject to indefinite appearances before the Review Board and to the exercise of its powers over them. The limitation of their liberty interest does not accord with the principles of fundamental justice and cannot be saved under s. 1 of the Charter . Accordingly, we would allow the appeal.
II. Background
3 The appellant suffers from Trisomy 21, more commonly known as Down Syndrome, which causes him to be moderately intellectually handicapped. On January 23, 1997, he appeared before the Court of Quebec in relation to charges of sexual assault under s. 271(1)(a) Cr. C. On that date, the judge before whom the appellant appeared ordered an inquiry to determine whether he was fit to stand trial. On February 28, 1997, the appellant was declared unfit to stand trial, following which he remained in hospital until he was discharged three months later, on May 5, 1997, by a Review Board acting under ss. 672.47 and 672.54 Cr. C. His discharge was subject to the condition that he live with his family, keep the peace and establish a consensual treatment regime together with his parents and medical professionals.
4 The appellant presented a motion to obtain a stay of proceedings under s. 24(1) of the Charter , or alternatively, to have s. 672.54 Cr. C. declared of no force and effect under s. 52(1) of the Constitution Act, 1982 , on the basis that it violated his rights under ss. 7 , 11 (b) and 15(1) . The Quebec Superior Court refused to grant a stay and upheld the impugned provision: [2002] Q.J. No. 590 (QL). Since the matters at issue are not appealable to the Quebec Court of Appeal, leave to appeal was sought. Leave to appeal was granted by this Court on December 12, 2002.
III. Constitutional and Statutory Provisions
5 The following provisions of the Constitution Act, 1867 and the Criminal Code are at issue:
Constitution Act, 1867
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, —
. . .
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
Criminal Code, R.S.C. 1985, c. C-46
672.33 (1) The court that has jurisdiction in respect of the offence charged against an accused who is found unfit to stand trial shall hold an inquiry, not later than two years after the verdict is rendered and every two years thereafter until the accused is acquitted pursuant to subsection (6) or tried, to decide whether sufficient evidence can be adduced at that time to put the accused on trial.
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).
6 The appellant submits that ss. 672.33 , 672.54 and 672.81(1) Cr. C. infringe his right to liberty and security of the person guaranteed by s. 7 , his right to be tried within a reasonable time guaranteed by s. 11 (b), the presumption of innocence guaranteed by s. 11 (d), and his equality rights guaranteed by s. 15(1) of the Charter . The relevant provisions of the Charter are as follows:
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.
11. Any person charged with an offence has the right
. . .
(b) to be tried within a reasonable time;
. . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
IV. Issues
7 The following constitutional questions were stated by the Chief Justice on February 13, 2003:
1. Do ss. 672.33, 672.54 and 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46 , infringe the rights and freedoms guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms on the ground that they deprive persons who have been found unfit to stand trial of their right to liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice?
2. If so, are the infringements reasonable limits that can be demonstrably justified in a free and democratic society under s. 1 of the Charter ?
3. Do ss. 672.33, 672.54 and 672.81(1) of the Criminal Code infringe the rights and freedoms guaranteed by s. 11 (d) of the Charter on the ground that they deprive persons who have been found unfit to stand trial of the right to be presumed innocent?
4. If so, are the infringements reasonable limits that can be demonstrably justified in a free and democratic society under s. 1 of the Charter ?
5. Do ss. 672.33, 672.54 and 672.81(1) of the Criminal Code infringe the rights and freedoms guaranteed by s. 15(1) of the Charter on the ground that they create discrimination against persons with a mental disability who have been found unfit to stand trial?
6. If so, are the infringements reasonable limits that can be demonstrably justified in a free and democratic society under s. 1 of the Charter ?
An additional question was stated on November 4, 2003:
7. Does the application of ss. 672.33 , 672.54 and 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46 , to persons found unfit to stand trial on account of permanent mental disorder overstep the legislative jurisdiction of the Parliament of Canada under the Constitution Act, 1867 ?
V. Discussion
A. The Impugned Scheme
8 In the wake of this Court’s decision in R. v. Swain, [1991] 1 S.C.R. 933, Parliament introduced Part XX.1 Cr. C. The provisions in Part XX.1 establish a regime for dealing with accused persons who suffer from mental disorders. The first group covered by the regime is made up of accused that are found “not criminally responsible on account of mental disorder” (“NCR”) under s. 672.34 Cr. C. The second group constitutes individuals declared unfit to stand trial. In Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, a majority of this Court held that Part XX.1 was constitutional insofar as it applied to NCR offenders. The constitutionality of Part XX.1 in its application to accused who are unfit to stand trial was not addressed in Winko and is the focus of this appeal.
9 Under s. 672.23(1) Cr. C., where a court has reasonable grounds to believe that the accused is unfit to stand trial, it may direct, on its own motion or on the application of one of the parties, that the issue of fitness of the accused be tried. The court has the power under s. 672.11 to order an assessment of the accused, which constitutes an examination by a medical practitioner on the mental condition of the accused, and any incidental observation or examination of the accused. During a trial on the fitness of the accused, an unrepresented accused is provided with legal representation under s. 672.24(1). He or she is presumed fit to stand trial (s. 672.22). The party requesting that the issue of fitness be tried bears the burden of proving on a balance of probabilities that the accused is unfit to stand trial (ss. 672.22 and 672.23(2)). Although expert evidence is relied on heavily, the ultimate issue of fitness is decided by the trier of fact (s. 672.26).
10 If the accused is found unfit to stand trial, the court may order the forcible treatment of the accused for up to 60 days if (i) the Crown requests forcible treatment and (ii) according to a medical practitioner, specific treatment should be administered for the purpose of making the accused fit to stand trial (ss. 672.58 and 672.59). Immediately following such treatment or a finding that the accused is unfit to stand trial (in the event that no treatment of the accused is ordered), a disposition hearing is held, either by the court (s. 672.45) or alternatively by a Review Board (s. 672.47) to determine whether, and subject to what conditions, if any, the accused should be released or detained. The body conducting the disposition hearing must take into consideration the factors set out in s. 672.54 : 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. It must be pointed out that under s. 672.54 , the Review Board is not authorized to grant an absolute or unconditional discharge to persons who are unfit to stand trial (although it does allow for the absolute discharge of individuals declared NCR).
11 Following its initial disposition in respect of an accused, the Review Board must conduct a hearing every year to determine whether the circumstances warrant a modification of its disposition (s. 672.81(1) ). If the accused is fit to stand trial, he is sent to trial under s. 672.48, and the jurisdiction of the Review Board ceases to operate. Otherwise, and subject to what will be said immediately below, another review hearing is held the following year.
12 In addition to the proceedings conducted by the Review Board, under s. 672.33 , every two years, the Crown must appear before a court to show that there still exists a prima facie case against the accused. This is the only way the Crown can justify maintaining the outstanding criminal charge against the accused. In the event that the Crown cannot make out a prima facie case against the accused, the court is required to acquit the accused.
13 The result of the combined operation of ss. 672.33 , 672.54 and 672.81(1) is that an accused found unfit to stand trial remains in the “system” established under Part XX.1 until either (a) he or she becomes fit to stand trial or (b) the Crown fails to establish a prima facie case against him or her.
B. Division of Powers
14 We will first examine the issue as to whether the impugned provisions fall within Parliament’s criminal law power under s. 91(27) of the Constitution Act, 1867 , or whether, as the appellant contends, it is ultra vires.
15 Whenever an issue of division of powers arises, the first step in the analysis is to characterize the “pith and substance” of the impugned legislation. In order to determine the pith and substance of any particular legislative provision, it is necessary to examine that provision in its overall legislative context: Swain, supra, at p. 998.
(1) The Criminal Law Power
16 Parliament’s jurisdiction over criminal law was recently examined by this Court in R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at paras. 73-74:
The federal criminal law power is “plenary in nature” and has been broadly construed:
A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.
(Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1 (the “Margarine Reference”), at p. 49)
. . .
For a law to be classified as a criminal law, it must possess three prerequisites: a valid criminal law purpose backed by a prohibition and a penalty (Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, at para. 27). The criminal power extends to those laws that are designed to promote public peace, safety, order, health or other legitimate public purpose. In RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, it was held that some legitimate public purpose must underlie the prohibition. In Labatt Breweries [of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914], in holding that a health hazard may ground a criminal prohibition, Estey J. stated the potential purposes of the criminal law rather broadly as including “public peace, order, security, health and morality” (p. 933). Of course Parliament cannot use its authority improperly, e.g. colourably, to invade areas of provincial competence: Scowby v. Glendinning, [1986] 2 S.C.R. 226, at p. 237.
17 In determining whether the purpose of a law constitutes a valid criminal law purpose, courts also look at whether laws of this type have traditionally been held to be criminal law: Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569, 2002 SCC 17, at para. 51; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, at para. 32; RJR-MacDonald v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 204; R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 491.
18 The pith and substance of Part XX.1 Cr. C. is revealed by its twin goals of protecting the public and treating the mentally ill accused fairly and appropriately: Winko, supra, at para. 20.
(2) Pith and Substance of the Impugned Provisions and Their Classification as Criminal Law Under Section 91(27)
19 The appellant contends that once it has been established that a person will not be tried because of permanent unfitness to stand trial, the circumstances no longer constitute a matter within Parliament’s criminal law power. Instead, he claims that persons who represent a danger to themselves or others fall under the exclusive provincial jurisdiction of property and civil rights pursuant to s. 92(13) of the Constitution Act, 1867 . The appellant also argues that the impugned provisions are not within Parliament’s criminal law powers because their pith and substance is the protection of society from persons with dangerous mental states, not persons who have engaged in conduct proscribed by the Criminal Code . He relies on passages from this Court’s decisions in Swain and Winko to suggest that once an unfit accused ceases to pose a significant threat to public safety, the criminal justice system has no further application.
20 Such a statement is true of the NCR accused. This Court has stated that the only constitutional basis for the criminal law restricting the liberty of an NCR accused is the protection of the public from significant threats to its safety. For example, in Winko, at para. 33, McLachlin J. (as she then was) held:
The preventative or protective jurisdiction exercised by the criminal law over NCR offenders extends only to those who present a significant threat to society. . . . Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application.
21 However, to say that the same considerations apply to the accused person found unfit to stand trial is to ignore fundamental differences between persons who are found to be NCR and persons who are found unfit to stand trial. The difference in legal status between the NCR and the unfit accused has been discussed by R. D. Schneider in “Mental Disorder in the Courts: Absolute Discharge for Unfits?” (2000), 21 For the Defence 36, at p. 38:
The NCR accused has not been convicted of a crime, but the criminal proceedings have been fully concluded and a final verdict obtained. Therefore, society’s residual hold on the accused can only be justified if the accused is shown to be a significant threat to the safety of the public. On the other hand, the unfit accused has yet to be tried. So long as the information or indictment is outstanding the court and/or the Review Board maintain jurisdiction over the accused. Jurisdiction over the unfit has nothing to do with dangerousness. The fitness rules were established to ensure that a prosecution not proceed where an accused is not able to adequately respond to the state. The rules are in place to protect the accused. While it is true that an accused may be “permanently unfit”, surely that status accompanied by the presumption of innocence [Charter , s. 11 (d)] is preferable to either proceeding against the unfit accused or terminating the outstanding charges. [Emphasis added.]
22 Thus, when a verdict of NCR has been rendered, the criminal process has ended and the exercise of criminal state power over NCR offenders can only be justified under the protective branch of the criminal law, when it is proven that the NCR offender presents a significant threat to the public. However, the situation is different with respect to accused found unfit to stand trial: the criminal law’s jurisdiction over the unfit accused does not stem from the protective branch of the criminal law, unless he or she is found to be dangerous. Rather, the criminal justice system maintains jurisdictional control over the accused found unfit to stand trial because that person is subject to a criminal accusation and pending proceedings. As long as this accusation is maintained, it is not necessary to consider the dangerousness of the accused or the protection of the public because othe