...absent a finding that the NCR accused represents a significant risk to the public, there can be no constitutional basis for restricting his or her liberty.

In its decision on a Charter challenge to a Court of Appeal of BC decision, the Supreme Court of Canada has sent a strong message to provincial review boards regarding limitations and responsibilities in confining and/or placing conditions on people who have been found not criminally responsible (NCR) for criminal acts. The SCC rejected the Charter challenge 9-0. However, in the decision written by Madam Justice Beverley McLachlin, the Court clarified two significant points: that the process of review places the burden of proof on the court or Review Board regarding a determination of dangerousness; and that if the court or Review Board fails to conclude positively that the NCR accused is a significant threat to public safety, it must grant an absolute discharge. Mr. Justice Charles Gonthier disagreed with the inclusion of “significant” in the threshold definition, but upheld the finding that the law was not discriminatory.

In 1991, Parliament enacted legislation designed to ensure that the legal system better addressed the issue of criminal acts committed by NCR accused. Under the old regime, a person could be convicted or acquitted on the basis of a defence that he or she was mentally unable to understand the nature or quality of his or her actions, and even if acquitted was automatically detained at the pleasure of the Lieutenant Governor in Council. This was successfully challenged in R v. Swain [1991] 1 S.C.R. 933, on the basis that it violated s.7 of the Charter.

The introduction of Part XX.1 of the Criminal Code reflected an entirely new approach, allowing for the diversion of NCR accuseds into a special stream, with a court or Review Board conducting a hearing to determine whether the person should be kept in a secure institution, released on conditions, or unconditionally discharged. If restraints or conditions are ordered, the case is reviewed every 12 months.

Lawyers for Joseph Ronald Winko and other appellants in related SCC cases, argued that interpretation of the law by the courts and by Review Boards has resulted in discrimination because constraints on NCR accuseds have been maintained if a court or Review Board cannot or does not resolve whether or not the individual is a danger to public safety. Thus, if an NCR accused cannot overcome the hurdles to mounting a convincing case that he or she is not a danger to society, he or she will be subject to restraints. Judge McLaughlin stated that while the law itself is not in violation of the Charter, this interpretation is not the appropriate one. “If the NCR verdict is not a verdict of guilt or an acquittal, neither is it a verdict that the NCR accused poses a significant threat to society. Part XX.1... requires the court or Review Board to assess whether such a threat exists in each case... (and) absent a finding that the NCR accused represents a significant risk to the public, there can be no constitutional basis for restricting his or her liberty.”

This article was published in the August 1999 issue of BarTalk. © 1999 The Canadian Bar Association. All rights reserved.