R. v. Owen

R. v. Owen
Collection
Supreme Court Judgments
Date
2003-06-06
Neutral citation
2003 SCC 33
Report
[2003] 1 SCR 779
Case number
28700
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 28700
Decision Content
R. v. Owen, [2003] 1 S.C.R. 779, 2003 SCC 33
Her Majesty The Queen Appellant
v.
Terry Steven Owen Respondent
Indexed as: R. v. Owen
Neutral citation: 2003 SCC 33.
File No.: 28700.
2003: January 15; 2003: June 6.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for ontario
Criminal law — Mental disorder — Dispositions by Review Board — Standard of review applicable to Board’s order — Criminal Code, R.S.C. 1985, c. C‑46, s. 672.78 .
Criminal law — Mental disorder — Review Boards — Dispositions by Review Board — Accused found not criminally responsible on account of mental disorder — Accused having ongoing substance abuse problems and continuing to show some propensity towards violence — Review Board ordering continued detention of accused at psychiatric hospital — Whether Board’s order unreasonable — Criminal Code, R.S.C. 1985, c. C‑46, ss. 672.54 , 672.78 .
Criminal law — Mental disorder — Review Boards — Appeal on transcript — Additional evidence — Review Board ordering continued detention of accused at psychiatric hospital — Whether fresh post‑review affidavit evidence adduced by Crown properly excluded by Court of Appeal — Meaning of “interests of justice” — Criminal Code, R.S.C. 1985, c. C‑46, s. 672.73(1) .
The respondent was found to be not criminally responsible (“NCR”) on account of mental disorder for the offence of second degree murder committed in 1978 in a psychotic state induced by drug abuse. Following a period of detention in various institutions for mental health care, he was gradually released into the community until 1987 when he was convicted of possession of a prohibited weapon, break and enter with intent to commit an indictable offence and possession of property obtained by crime. After the completion of his sentence, the respondent was returned to custodial care, where other incidents involving violence occurred. Efforts were again made to release the respondent gradually into the community, but the problems with substance abuse re‑occurred, and he continued to show some propensity towards violence. Review Board dispositions in 1994, 1995 and 1996 provided for conditional discharges but in 1997, when the respondent’s urine tested positive for cannabis, the psychiatric hospital told the Board that it could no longer support a conditional discharge order because of the respondent’s continued substance abuse and the hospital’s need for flexibility “to react quickly to known increases in risk”.
Under s. 672.54 of the Criminal Code , the Board’s disposition must be the least onerous and least restrictive to the accused, having regard to (1) the need to protect the public from dangerous persons, (2) the mental condition of the accused, (3) the reintegration of the accused into society and (4) the other needs of the accused. The Board, after a full hearing, concluded that the respondent constituted a significant danger to the safety of the public and ordered his continued detention at a psychiatric hospital. At the Court of Appeal, the Crown sought to bolster the Board’s decision with fresh affidavit evidence which alleged that, since the date of the Board hearing, the respondent had punched another patient, threatened to kill yet another patient, and was found in possession of prohibited drugs. The Court of Appeal declined to admit the fresh evidence, proceeded to review the Board’s order based on the evidence available at the original hearing, set aside the Board’s order as unreasonable, and directed that the respondent be absolutely discharged.
Held (Arbour J. dissenting): The appeal should be allowed. The Review Board’s order was not unreasonable and should be reinstated.
Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, LeBel and Deschamps JJ.: The Review Board’s assessments of mental disorders and attendant safety risks call for significant expertise and the appropriate standard of review, reflected in s. 672.78 of the Criminal Code , corresponds to reasonableness simpliciter.
The Court of Appeal reweighed the evidence and found it wanting. That assessment, however, was for the Board to make, and the decision it made was reasonably open to it on the evidence. It was not enough to suggest that other members of other review boards might have taken a different view of the evidence. The Review Board could reasonably conclude that the respondent’s demonstrated capacity for violence when taking amphetamines or cocaine, now linked to recent evidence of resumed use of cocaine, rendered him a significant threat to the public’s safety. The “logical process” by which it sought to draw its conclusion from the resumed use of cocaine was squarely within its expertise.
The Ontario Court of Appeal pointed out that from 1994 to 1996 the respondent had been granted conditional discharges, but in 2000 the Review Board was required to deal with the respondent’s situation as it found it to be in 2000. The various hospital recommendations from 1994 to 1999 were made at a time when the hospital mistakenly believed that the respondent was undertaking successful steps to control the substance abuse that, in its view, had been the catalyst for earlier acts of violence.
Given the continuing use of cocaine and the consequent risk to society posed by the respondent, it was also not unreasonable for the Review Board to have concluded that its disposition was the least onerous and least restrictive alternative. The respondent’s own history of drug abuse and concealment persuaded the Review Board that there was little prospect of his drug habit being effectively controlled with the sporadic supervision available after release into the community.
The respondent says that he is entitled to an absolute discharge because if he were to re‑offend while on drugs, he would still be subject, like anyone else, to the strictures of the Criminal Code . But he is not “like anyone else”. He is a NCR detainee whose drug abuse is linked to a propensity for violence, including murder, and Part XX.1 of the Criminal Code is designed to take measures to protect the public safety before violence occurs, not (as in the ordinary case) to punish the offender afterwards.
The Court of Appeal erred in law in rejecting the fresh evidence. An appeal against a disposition order is to be based on a transcript of the evidence and, pursuant to s. 672.73(1) of the Code, “any other evidence that the court of appeal finds necessary to admit in the interests of justice”. The term “interests of justice” takes its meaning from the context in which it is sought to be applied and includes not only justice to the NCR detainee, whose liberty is at stake, but also justice to the public, whose protection is sought to be assured. The proffered evidence (including physical assaults in 2000 and a recent death threat) was highly relevant. It went to the core of the Court of Appeal’s concern about the adequacy of evidence of the respondent’s continuing propensity for violence and, if credible, ought to have been admitted as bearing on a decisive issue. An absolute discharge should be granted only upon consideration of all of the reliable evidence available both at the time of the Board hearing and, if appealed, at the time of the appellate review. The fresh evidence was therefore admitted as part of the record on this appeal.
Per Arbour J. (dissenting): The standard of review applicable to the Review Board’s disposition was reasonableness simpliciter and, in this case, the Court of Appeal correctly concluded that the Board’s ruling was unreasonable.
First, the Board’s finding regarding the respondent’s dangerousness was unreasonable. In determining whether an accused is a significant threat to the safety of the public, the Board must consider all the factors listed in s. 672.54 of the Criminal Code . If the mental condition of the accused is such that he or she no longer suffers from a mental disorder, the accused’s mental condition should not be confused with his or her propensity to commit crimes and, in that respect, the accused should be answerable to criminal sanctions like anyone else. The mental disorder detention regime seeks to guard against the repetition of dangerous conduct that a mentally disordered accused is likely to engage in and for which he or she would not be held responsible. The Court of Appeal thus correctly concluded that the Board improperly punished the respondent for his successful deception regarding his drug habit. Justifying the respondent’s detention within the NCR system by his continuous substance abuse problems is equivalent to imposing such a burden on the respondent so as to deny him the possibility of ever getting out of the system, despite a prolonged absence of any violent behaviour. The Board’s assessment of the risk posed by the respondent was entirely speculative and not supported by a proper appreciation of the record.
Second, on the facts of this case, it was unreasonable for the Board to conclude that the custodial disposition imposed was the least onerous disposition available in the circumstances in that it accorded the respondent as much liberty as is compatible with public safety. Even if the respondent constituted a sufficient threat to the community to preclude his absolute discharge, the Board was required to embark on an evaluation of all four of the factors outlined in s. 672.54 in order to determine whether a conditional discharge or a custodial order was the appropriate disposition.
There was no reason to interfere with the exercise of the Court of Appeal’s discretion in its appreciation of the fresh evidence tendered. Section 672.73(1) of the Code permits the Court of Appeal to admit any evidence “that [it] finds necessary to admit in the interests of justice”. Where a court of appeal is of the opinion that an NCR accused should have been granted an absolute discharge at the Review Board hearing, the new evidence should be virtually conclusive that an absolute discharge is not appropriate before a court of appeal should decide not to order it. Moreover, it is not clear that an absolute discharge of an NCR detainee terminates the state’s capacity to supervise and monitor the respondent’s mental condition. Indeed, s. 672.82(1) of the Code provides for discretionary review of any disposition of the Board.
Cases Cited
By Binnie J.
Distinguished: Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32; referred to: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; R. v. Swain, [1991] 1 S.C.R. 933; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Moreau‑Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; Peckham v. Ontario (Attorney‑General) (1994), 93 C.C.C. (3d) 443; Beauchamp v. Penetanguishene Mental Health Centre (Administrator) (1999), 138 C.C.C. (3d) 172; Penetanguishene Mental Health Centre v. Ontario (Attorney General) (1999), 131 C.C.C. (3d) 473, leave to appeal refused, sub nom. Clement v. Attorney General for Ontario, [1999] 1 S.C.R. vi; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Stolar, [1988] 1 S.C.R. 480; Davidson v. British Columbia (Attorney‑General) (1993), 87 C.C.C. (3d) 269; R. v. Warsing, [1998] 3 S.C.R. 579; Ares v. Venner, [1970] S.C.R. 608; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Lévesque, [2000] 2 S.C.R. 487, 2000 SCC 47; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26.
By Arbour J. (dissenting)
R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; R. v. Yebes, [1987] 2 S.C.R. 168; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. Morin (1995), 37 C.R. (4th) 395.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46 [am. 1991, c. 43], ss. 16(1), 672.34, 672.38(1), 672.39, 672.4(1), 672.43, 672.51, 672.54 , 672.73(1) , 672.78 , 672.81(1), 672.82, 683(1), 686(1)(a).
Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s. 80(9).
Inquiries Act, R.S.C. 1985, c. I‑11, ss. 4 , 5 .
APPEAL from a judgment of the Ontario Court of Appeal (2001), 54 O.R. (3d) 257, 145 O.A.C. 142, 155 C.C.C. (3d) 82, 42 C.R. (5th) 362, [2001] O.J. No. 1710 (QL), setting aside a decision of a Review Board. Appeal allowed, Arbour J. dissenting.
Riun Shandler, for the appellant.
Brian Snell, for the respondent.
The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, LeBel and Deschamps JJ. was delivered by
1 Binnie J. — The 1991 amendments to the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”) established a new review system for individuals, like the respondent, who have been found not criminally responsible for a criminal offence on account of mental disorder. In the respondent’s case, the offence was second degree murder committed in 1978 in a psychotic state induced by drug abuse. On May 17, 2000, the Ontario Review Board (“Board”), after a full hearing, concluded that the respondent continued to constitute a significant danger to the safety of the public and ordered his continued detention at the Kingston Psychiatric Hospital (“KPH”). At the Court of Appeal, the Crown sought to bolster the Board’s decision with fresh affidavit evidence which alleged that, since the date of the Board hearing, the respondent had punched another patient, threatened to kill yet another patient, and was found in possession of prohibited drugs. The Court of Appeal declined to admit the fresh evidence, proceeded to review the Board’s order based on the evidence available at the original hearing, allowed the appeal, set aside the Board’s order as unreasonable, and directed that the respondent be absolutely discharged.
2 In my view, the appeal should be allowed. Giving due deference to the Board’s expertise in these matters, its decision was not unreasonable on the record before it. Moreover, with respect, the Court of Appeal erred in law in rejecting, without reasons, the fresh evidence. Evidence of violent behaviour in the year 2000 by the respondent was relevant to the crux of the court’s decision that the respondent should no longer be detained as a significant threat to the safety of the public. The fresh evidence confirmed in part the factual basis of the Board’s May 17, 2000 order. The statutory procedure for dealing with individuals adjudged not criminally responsible by reason of mental disorder is inquisitorial, not adversarial. A decision to grant an absolute discharge should be based on the best information available including, where appropriate, fresh information before a court of appeal that postdates the original Board hearing.
3 The disposition of this appeal will have limited effect on the respondent. We are dealing with events that are now three years in the past. He is entitled to an expert and independent review of his detention at least every 12 months, and sooner “at any time”, in the Board’s discretion (s. 672.82(1)). These annual reviews, required by the Criminal Code , will continue until he receives an absolute discharge. He is thereby assured that any further disposition orders regarding his continued detention or eventual discharge will be made on up-to-date information and assessments. Fairness is thereby assured to both the respondent and to the public.
I. Facts
4 On October 10, 1978, the respondent was found not guilty by reason of a mental disorder of a charge of second degree murder. The circumstances of the murder (the “index offence”) were described in the report of the North Bay Psychiatric Hospital dated October 1990, as follows:
[The respondent] had been living with the 22 year old [male] victim, who was from the Chatham area. They had been together about three months. The offence occurred in the morning, but the [respondent] stated he did not remember too much. He remembered having been paranoid for some weeks prior to the offence and that he had this song in his head. He cannot remember what the song said. He had slept at night before the offence and remembered having an apple spiked with MDA. In the morning the [respondent] and another man shared this apple. The [respondent] states that he had been scared and paranoid for some time but he was not quite conscious of it. However, after consuming the apple he was afraid of his friend and believed that his friend had been involved in the killing of his grandfather, although [the respondent’s] grandfather was not killed but died of natural causes. The [respondent] remembered hitting the man with a stick or something. [The respondent] also had a gun. After the offense he stopped and stood there until the police came. The man died shortly afterwards of the wounds that were inflicted. [The respondent] was charged with Murder.
5 Prior to the 1978 murder, the respondent had acquired a criminal record for breaking and entering, obstructing a police officer, trafficking in narcotics, possession of narcotics and possession of stolen property.
6 Following a period of detention in various institutions for mental health care, the respondent was gradually released into the community until 1987 when he was arrested on charges of possession of a prohibited weapon, break and enter with intent to commit an indictable offence and possession of property obtained by crime. On June 15, 1988, he was convicted of all three charges. Following completion of his sentence, the respondent was returned to the North Bay Psychiatric Hospital. In 1989, he got into a disagreement with the staff about hospital privileges, and the hospital report indicates that he lost his self-control and punched a car door so hard that he broke bones in his hand, requiring a cast. The respondent was reported to have stated, “[i]t was either the door or Brad’s jaw, man, I had to hit something”. Subsequently, in January 1990, while living in the community, the respondent severely fractured a man’s jaw with a pool cue during a disagreement while under the influence of alcohol. The respondent was convicted of assault causing bodily harm on June 7, 1990, and sentenced to 14 months in prison.
7 Thereafter, efforts were again made to release the respondent gradually into the community, but the problems with substance abuse re-occurred, and he continued to show some propensity towards violence. In 1991, for example, the respondent was admitted to the KPH’s secure unit. While there, he engaged in what were called “assaultive behaviours” while under the influence of alcohol. A 1992 risk assessment conducted by the Ontario Ministry of Health placed the respondent in a category of violent offenders for which it was predicted that 44 per cent would re-offend violently within seven years after release. A 1992 KPH report signed by the hospital medical staff noted that the respondent’s risk assessment included abuse of street drugs and/or alcohol, and violence against other persons:
[The respondent’s] prognosis continued to be extremely guarded given his lack of insight into his situation, his lack of regard for other persons, and his intolerance of the system. It was predicted that a circumstantial situation will likely compromise his liberty at an early stage in community living. [The respondent] has a history of repeated offences, including unprovoked violence, indulgence in drugs and alcohol, and a cavalier attitude, making him a serious risk to the community.
8 Nevertheless, Board dispositions in 1994, 1995 and 1996 provided for conditional discharges. In 1997, the respondent’s urine tested positive for cannabis, and KPH told the Board that it could no longer support a Conditional Discharge Order because of the respondent’s continued substance abuse and the hospital’s need for flexibility “to react quickly to known increases in risk”:
[W]hen the hospital is unable to require either hospital admission or significant changes in supervision, the community is placed at risk. The community would fail to appreciate why it is that KPH is unable to react quickly to known increases in risk. This situation is very likely to occur time and time again in the future. The role of the hospital should be to ensure that it is managed in a timely manner, consistent with the long-term rehabilitation needs of [the respondent] and not contrary to the safety of the public. The hospital sees no useful purpose in a several month hospitalization every time this happens while [the respondent] awaits the pleasure of the Board. Indeed the results of the current administrative arrangement — a Conditional Discharge Order — are contrary to the rehabilitation needs of [the respondent] and do nothing to protect the public.
. . .
[The respondent] will always remain at risk for drug and alcohol consumption and for related antisocial behaviours. Risk will increase unacceptably when this occurs. The hospital should be equipped to deal with this by way of discretionary authority vested in a custodial order. [Emphasis added.]
9 The Board’s dispositions in 1997, 1998 and 1999 provided that the respondent be detained at KPH but live in Kingston, again on the condition that he abstain from non-medical use of alcohol and drugs. In March 1999, the hospital reported that:
The team is of the opinion that [the respondent] continues to represent a risk to the safety of the public.
In 2000, his continued use of cocaine was detected, as described below.
10 Over this period, the respondent formed a common law relationship. He and his common law wife had a child to whom the respondent is devoted. The respondent and his common law wife eventually separated and for a period of time the respondent looked after the child. It is evident from his testimony that his inability to leave the hospital and thereafter to look after his son is a major concern. The stresses of single parenthood combined with severe financial difficulties took their toll. In 1999, he was convicted of alcohol-induced impaired driving and given a custodial sentence. The child went to live with the mother but, on September 30, 1999, was taken into care by the Children’s Aid Society.
11 Both the common law wife and her daughter by another union advised the hospital authorities that the respondent was “fooling” the drug tests over a period of years by substituting other peoples’ urine samples. On being retested under close scrutiny on January 25, 2000, the respondent tested positive for both cocaine and cannabis. He then admitted that apart from a period of about 18 months prior to the birth of his child, he had never abandoned his drug habit, and, it seems, does not intend to do so.
II. Judicial History
A. Ontario Review Board (May 17, 2000)
12 The Board reviewed the facts and circumstances noted above, and noted that, following the positive drug test, the respondent now freely admitted a drug habit of many years (though not the use of cocaine). His counsel disputed the hospital’s contention that the “combination of drug use, alcohol use and stressors in his [client’s] life” was “a fatal combination that” created “a significant risk”:
What I say is that those factors have been in his life for a decade and there has been no indication of any acting out, of any violent behaviour, of any abusive behaviour — or of any reoccurrence of the mental illness that was present during the index offence.
13 The Board concluded that the respondent’s “drug-induced psychosis is currently in remission. However, he continues to suffer from a very serious antisocial personality disorder which is complicated by alcoholism and substance abuse.” The respondent’s attending physician at the KPH testified that cocaine induces an effect comparable to the amphetamines that were found to have induced the psychotic state in which the respondent committed murder in 1978. In the Board’s view, the evidence showed that the respondent “continues to expose himself to those very elements that produced the drug-induced psychosis and disinhibited him to the point where he lost control of his behaviour” (emphasis added).
14 The Board noted the hospital administrator’s opinion that the respondent “represents a significant risk to the safety of the public. He has demonstrated that even with close controls he engages in behaviours that could potentially place members of the public at risk. The presence of cocaine is most troubling given its similar profile to amphetamine, which was implicated in his index offence and drug induced paranoid state.”
15 The Board accordingly concluded that “taking into consideration the need to protect the public from dangerous persons[,] the mental condition of the [respondent], the reintegration of the [respondent] into society and the other needs of the [respondent], the Board is of the unanimous view that the least onerous and least restrictive disposition” would be continued detention at the KPH, with discretion to permit the respondent compassionate leave, staff-accompanied hospital and grounds privileges, and staff-accompanied entry into the community. The respondent was required to abstain absolutely from alcohol and non-prescription drugs and to submit a sample of his breath and/or urine for testing purposes.
B. The Fresh Evidence Application
16 The Board hearing was held in March 2000. When the matter came before the Court of Appeal, the Crown sought to introduce as fresh evidence the KPH report prepared for the respondent’s subsequent January 2001 Board hearing, which attached various hospital records showing that during the year 2000 the respondent “has threatened to harm co-patients on numerous occasions”. On March 29, 2000, he was placed “in seclusion because his behaviour escalated to aggressive postures and [was] threatening in nature”. On April 10, 2000, he was recorded as “tormenting” a co-patient, eventually asking “Are you going to kill me in the night?” In September 2000, further drug paraphernalia was found and charges laid. During a urine test the same month, the respondent was recorded as telling a nurse, “I feel like I should be cracking somebody on the head like I’ve wanted to do for the last 10 years.” On September 26, 2000, he is recorded as yelling at a co-patient apparently in his room in search of a stolen watch, “You fucking bastard. Come to my room one more time and I will kill you. See those fucking cameras. They mean shit to me. I will kill you. I haven’t killed in 20 years but I’ll do it again.” On December 12, 2000, the respondent got into a fight with a co-patient in which he punched the other patient in the nose. The incident was witnessed by a number of other patients.
C. Ontario Court of Appeal (2001), 54 O.R. (3d) 257
17 The Court of Appeal (Catzman, Weiler and Rosenberg JJ.A.) concluded that the decision of the Board was unreasonable and could not be supported by the evidence given at the original hearing.
18 The court did not admit the fresh evidence and gave no reason for its refusal.
19 The court reviewed the relevant provisions of the Criminal Code including “the need to protect the public from dangerous persons” (s. 672.54 ) and expressly noted that the onus was on the Crown to establish that the respondent constitutes “a significant threat to the safety of the public” (s. 672.54 (a)). Reference was made to Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625. The court noted that the KPH had not considered the respondent to be a significant risk to public safety between 1994, when it had recommended an absolute discharge, and 1999. In the court’s view, the Board had wrongly shifted the focus from the protection of the public to the prevention of the respondent’s abuse of alcohol and illegal drugs. It concluded that the evidence before the Board fell short of establishing that the respondent was a significant threat to the safety of the public, even when he was using drugs. The court therefore ordered an absolute discharge.
III. Relevant Statutory Provisions
20 The relevant provisions of the Criminal Code are attached as Appendix A.
IV. Analysis
21 At what point should an individual who has been found not criminally responsible for murder on account of mental disorder related to substance abuse, and who refuses to control his habit, be given an absolute discharge to return without restriction to the community? The individual in this case says he was entitled to an absolute discharge at least by May 1998 and, as stated, the Ontario Court of Appeal agreed with him.
22 An individual who is found to have committed a criminal act or omission under the influence of a mental disorder is not acquitted. Rather, if it is concluded that the mental disorder impaired his or her capacity at the time of the offence to appreciate the nature and quality of what was done or omitted, or of knowing that it was wrong, he or she must be adjudged by the court to be “not criminally responsible [NCR] on account of mental disorder” (Cr. C., ss. 16(1) and 672.34).
23 There is no presumption that an NCR individual is a danger to the safety of the public: Winko, supra, at para. 46. On the contrary, the Criminal Code requires that persons found NCR be granted an absolute discharge unless the court or a Review Board is able to conclude that the individual poses a significant risk to the safety of the public. Even when this risk is established, the disposition is to be “the least onerous and least restrictive to the accused” consistent with the level of risk posed, i.e., ranging from detention “in custody in a hospital” to discharge “subject to such conditions as the court or Review Board considers appropriate” (Cr. C., s. 672.54).
24 The disposition of a Review Board is subject to appeal to the appellate courts based on “a transcript of the proceedings and any other evidence that the court of appeal finds necessary to admit in the interests of justice” (Cr. C., s. 672.73(1)).
25 It is of central importance to the constitutional validity of this statutory arrangement that the individual, who by definition did not at the time of the offence appreciate what he or she was doing, or that it was wrong, be confined only for reasons of public protection, not punishment (Winko, supra, at paras. 41 and 71, and R. v. Swain, [1991] 1 S.C.R. 933). In this case, the respondent contends that he is being punished not only for the index offence, but also for his drug habit and his failure to cooperate with the hospital authorities in dealing with it over the years 1978 to 2000.
A. Justification for Continued Confinement
26 Once a detention order is made, the task of monitoring whether an NCR individual continues to constitute a significant threat to the safety of the public is given to the Board which is required to hold a hearing to review the status of each NCR individual no less frequently than every 12 months (Cr. C., s. 672.81(1)).
27 The Board must be satisfied that, at the time of the hearing, the evidence demonstrates that the NCR individual constitutes such a threat. “If, at the end of the day, the court or Review Board cannot so conclude, the legal justification for confinement is absent and the NCR [individual] must be released” (Winko, supra, at para. 51).
28 The difficulty, of course, is that the Board is inevitably required to make its expert assessment on limited data. Here, the respondent has been under state supervision of varying degrees of intensity for over 20 years. How the respondent would behave if state supervision were removed by an absolute discharge necessarily involves an element of prediction. The Board is required to focus on his present mental state, but the appropriateness of its assessment in practice will, to some extent, depend on future events. In the present case, the major complicating factors, in the Board’s opinion, were the respondent’s history of violence, his continuing drug problem, the link between his use of hard drugs and the 1978 murder, and his apparent unwillingness to bring his drug habit under control.
B. The Review Board’s Expertise
29 To make these difficult assessments of mental disorders and attendant safety risks, the Board is provided with expert membership and broad inquisitorial powers. While the chairperson is to be a federally appointed judge, or someone qualified for such an appointment, at least one of the minimum of five members must be a qualified psychiatrist. If only one member is so qualified, at least one other member must “have training and experience in the field of mental health”, and be entitled to practise medicine or psychology (Cr. C., ss. 672.39 and 672.4). The chairperson has all the powers conferred under ss. 4 and 5 of the Inquiries Act, R.S.C. 1985, c. I-11 , and a broad authority to consider “disposition information” that may not in all respects comply with strict rules of evidence (Cr. C., ss. 672.43 and 672.51 ).
30 It is evident that the assessment of whether the respondent’s mental condition renders him a significant threat to the safety of the public calls for significant expertise.
C. The Standard of Review
31 The appellant submitted an extensive analysis of the Court’s administrative law jurisprudence applying the “functional and pragmatic test” to establish the appropriate standard of review from U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1087, to Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11. However, in the case of these review boards, Parliament has spelled out in the Criminal Code the precise standard of judicial review, namely that the court may set aside an order of the review board only where it is of the opinion that:
(a) the decision is unreasonable or cannot be supported by the evidence; or,
(b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or
(c) there was a miscarriage of justice. (Cr. C., s. 672.78)
32 It must be kept in mind that “[t]o a large extent judicial review of administrative action is a specialized branch of statutory interpretation”: Bibeault, at p. 1087 (emphasis deleted). Where Parliament has shown its intent in the sort of express language found in s. 672.78 Cr. C. then, absent any constitutional challenge, that is the standard of review that is to be applied.
33 The first branch of the test corresponds with what the courts call the standard of review of reasonableness simpliciter, i.e., the Court of Appeal should ask itself whether the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 56, Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, and Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19. If the Board’s decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene.
34 The Crown asks us to apply the test of “unreasonable verdict” in criminal cases, citing R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15. There are parallels between the language of s. 672.78 Cr. C. dealing with appellate review of an NCR disposition order, and s. 686 Cr. C. dealing with appellate review of verdicts in criminal cases, and there is authority for that proposition: see Peckham v. Ontario (Attorney-General) (1994), 93 C.C.C. (3d) 443 (Ont. C.A.), at p. 454. However, with respect, we should be mindful of the differences in context, regardless of the similarity in the wording of the statutory provisions. An NCR disposition order is not punitive: Winko, supra, at paras. 41 and 71. It arises out of a process that is inquisitional, not adversarial, that takes place before an administrative board, not a court. To the extent the Crown seeks to raise the bar of judicial review higher than reasonableness simpliciter, I think the attempt should be resisted. An NCR disposition order is to be reviewed on the basis of administrative law principles. Resort must therefore be taken to the jurisprudence governing judicial review on a standard of reasonableness simpliciter, as most recently discussed in Dr. Q, supra, at para. 39, and Ryan, supra, at para. 47.
35 The appellant next contends that, notwithstanding its notional acceptance of the reasonableness simpliciter test, the Court of Appeal in reality substituted its own view for that of the Board, thus in fact applying the least deferential standard of review, namely correctness. I do not agree.
36 The Court of Appeal referred, at para. 17, to its own previous decision in Beauchamp v. Penetanguishene Mental Health Centre (Administrator) (1999), 138 C.C.C. (3d) 172, at p. 180, where Osborne A.C.J.O. stated that the court’s review of a disposition “is not a review of the correctness of findings made in the disposition” (emphasis added). See also Penetanguishene Mental Health Centre v. Ontario (Attorney General) (1999), 131 C.C.C. (3d) 473 (Ont. C.A.), at para. 8, leave to appeal refused, sub nom. Clement v. Attorney General for Ontario, [1999] 1 S.C.R. vi.
37 Moreover, the court in this case expressly acknowledged the Board’s “medical expertise, its specialized knowledge and its advantage in observing witnesses” (para. 18). These factors, as the court itself explicitly recognized, command deference. The court concluded that it ought nevertheless to intervene because, in its view, the decision appealed from was unreasonable and could not be supported by the evidence. Although the court did not use the term “reasonableness simpliciter”, I think it is clear from the decision as a whole that this is the standard of review applied by the court and it was correct to do so.
D. Was the Review Board Decision Unreasonable?
38 The Court of Appeal accepted the Board’s conclusion that the respondent “continues to suffer from an anti-social personality disorder exacerbated by substance abuse” (para. 20). Such an assessment was within the Board’s expertise and the court saw “no basis on which this court can properly interfere with it” (para. 20).
39 The paranoid psychotic state in which the murder had been committed in 1978, triggered by amphetamine abuse, had apparently subsided. However, while the evidence suggests the respondent was not suffering in 1999 from a “mental disorder” (emphasis added) as required by Cr. C. ss. 16 and 672.34 to qualify initially for NCR status, the Board in making subsequent dispositions is required by s. 672.54 to have regard to the NCR person’s “mental condition” (emphasis added), which is a term of broader scope, and which in the respondent’s case was certainly a relevant consideration for the Board in the spring of 2000. As McLachlin J., as she then was, pointed out in Winko, supra, at para. 40:
Public safety will only be ensured by stabilizing the mental condition of dangerous NCR accused.
40 However, the Court of Appeal concluded that the evidence “fell short of establishing that the appellant is a si