Indexed as:
Davidson v. British Columbia (Attorney General) (B.C.C.A.)
Between
James Dain Davidson, Appellant, and
Attorney General of British Columbia and Forensic Psychiatric
Services Commission, Respondents
[1993] B.C.J. No. 2214
DRS 95-11291
Vancouver Registry: CA016182
British Columbia Court of Appeal
Vancouver, British Columbia
Wallace, Hollinrake and Goldie JJ.A.
Heard: May 5, 1993.
Judgment: filed July 7, 1993.
(21 pp.)
Persons of unsound mind — Release from committal — Conditional discharge from mental hospital — No miscarriage of justice — Sexual offender.
This was an appeal from an order of the Board that the appellant be discharged from the custody of the hospital subject to conditions. He had been found not criminally responsible for a sexual assault on account of a mental disorder. The majority of the Board concluded that it had doubts as to whether the appellant would pose a significant threat to the safety of the public.
HELD: The appeal was dismissed. There was no miscarriage of justice. The appellant was at large subject to conditions which were to be reviewed.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 1, 7, 9. Criminal Code, ss. 16, 271, 542, 638, 672.47, 672.54, 672.73. |
Counsel for the Appellant: B.T. MacDonell and D.J. Nielsen.
Counsel for the Respondent, Attorney General of British
Columbia: W.K. Kinash and A.R. Westmacott.
Counsel for the Respondent, Forensic Psychiatric Services
Commission: D.C. Prowse and M. Acheson.
• 1 GOLDIE J.A. (for the Court, dismissing the appeal):— This is an appeal from a disposition made by the British Columbia Review Board (the "Board") on August 31, 1992 pursuant to the provisions of s.672.54 of the Criminal Code of Canada.
• 2 By its disposition the Board ordered the appellant (to whom I will refer as the "appellant" or "Mr. Davidson") discharged from the custody of the Forensic Psychiatric Institute (the "Hospital") subject to conditions. Mr. Davidson had earlier been found not criminally responsible for a sexual assault on account of mental disorder. He contends he is now entitled to be discharged absolutely.
• 3 He appeals to this Court under s.672.72(1) of the Criminal Code which provides for an appeal from a disposition of the Board on any ground of appeal that raises a question of law or fact alone or of mixed law and fact.
• 4 There are applications by the Hospital and by the Attorney General to adduce fresh evidence. I will refer to these later.
• 5 On May 1, 1991 Mr. Davidson was charged with sexual assault under s. 271 of the Code. He was released on May 6, 1991 but was rendered by his surety on May 10 for a breach or threatened breach of a condition of his release that he abstain from communicating with the complainant. Thereafter he was remanded in the custody of the Hospital for 30 days for a psychiatric assessment. He was found fit to stand trial. On this occasion he was in custody of the Hospital from May 22, 1991 to June 11, 1991.
• 6 He was released on his own recognizance with one surety on June 12, 1991 pending the preliminary hearing. He was committed for trial on August 21, 1991 and released on a new recognizance with one surety with conditions intended to ensure he had no contact with the complainant. We were told nothing untoward occurred while he was at liberty pending his trial.
• 7 The trial opened on May 19, 1992 before Mr. Justice Arkell sitting alone. On May 20 the trial judge found that the essential elements of the offence had been established. While the trial record is not before us it appears this was accepted as a finding Mr. Davidson was otherwise guilty of the offence charged. The Crown thereupon called evidence in support of its contention that Mr. Davidson was suffering from a mental disorder such that he was not criminally responsible for the act he committed. This procedure accorded with the judgment of the Supreme Court of Canada in R. v. Swain (1991) 63 C.C.C. (3d) 481 and Part XX.1 of the Code which responded to that judgment.
• 8 The principal Crown witness was Dr. Stanley Semrau, a qualified psychiatrist who had been consulted by Mr. Davidson's counsel and as well had access to the documentation resulting from Mr. Davidson's stay in the Hospital in 1991 when he was found fit to stand trial.
• 9 Dr. Semrau's opinion, as expressed in his report, was that Mr. Davidson suffered, at least on an intermittent basis, from a delusional disorder of the erotomanic type and also from a very severe personality disorder with both schizoid and paranoid features - a combination he described as very potent. He noted Mr. Davidson resisted the notion his mental state was in any way abnormal.
• 10 On May 20, Mr. Justice Arkell found Mr. Davidson to be not criminally responsible for the act he committed and he was thereupon remanded in custody to the Hospital. Under s. 672.47(1) of the Code where the trial judge makes no disposition after a finding the accused is not criminally responsible it becomes the obligation of the Board to undertake this task.
• 11 It is here the major reforms effected by the provisions of Part XX.1 of the Code become manifest. Instead of detention at the pleasure of the Crown of those not guilty by reason of insanity a more structured process is provided to ensure the subject's loss of liberty is kept to a minimal level. This was considered in detail by this Court in Orlowski v. Attorney General of British Columbia et al (1992) 94 D.L.R. (4th) 541, 75 C.C.C. (3d) 138 and I need not repeat that description here.
• 12 The judgment of this Court in Orlowski, supra, was released one month before the Board's disposition in question here.
• 13 The Board's first post-trial consideration of Mr. Davidson's case took place on June 29, 1992. Mr. Davidson was ordered conditionally discharged, subject to review not later than August 24. The review took place on August 31. It is from the disposition made as a result of this hearing that Mr. Davidson appeals.
• 14 At the outset of the hearing on August 31 the chairman explained its purpose to Mr. Davidson and his counsel:
We have to consider your mental condition today, your reintegration into society and we have to consider your general needs and also the safety of the public. |
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In the course of the hearing that we held in June we had an extensive review of those matters but of course to the extent that any of them may have changed since then we will have to see how you have been doing and how you are doing today. Nevertheless, the interest that we had was to pursue an early review so that a conditional discharge in the real sense could be explored. |
• 15 His words echo the language of s. 672.54 of the Code which I here set out:
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; |
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| (b) | by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or |
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| (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. |
• 16 This language was analyzed in Orlowski, supra. It was there held the Board need not order an absolute discharge if it is unable to come to an opinion on the issue of significant threat. As it happened, at the re-hearing of Mr. Orlowski's case, the Board concluded he was not entitled to an absolute discharge as "... the members of the Board had doubts about whether the accused is or is not a significant threat to the safety of the public ...": In the Matter of Orlowski, Reasons of the Board, March 31, 1993, p. 19.
• 17 In the case at bar the majority of a five member panel of the Board concluded it had doubts about whether in the future Mr. Davidson could become a significant threat to the safety of the public. The minority would have granted him an absolute discharge. The primary basis for the majority's opinion was a report dated August 19, 1992 from a staff psychiatrist at the Hospital to its clinical director. I extract from that report the following:
In assessing this, one can predict that a high risk situation would be one in the future where he becomes attracted to a new female and begins to make inappropriate demands, and is unable to accept acknowledgment of even rejection. He also does not acknowledge his relative lack of social skills, and would therefore not likely comply with a requirement that he do some form of social skills training, which we would recommend. |
• 18 Before considering the substantive issues raised in this appeal I will deal with the applications of the attorney general and the Hospital to introduce what each termed fresh evidence. These applications were opposed.
Applications to adduce fresh evidence.
• 19 What is called in question is s. 672.73 of the Code:
672.73 (1) An appeal against a disposition by a court or Review Board or placement decision by a Review Board shall be 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. |
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(2) For the purpose of admitting additional evidence under this section, subsections 683(1) and (2) apply, with such modifications as the circumstances require. |
• 20 The words "in the interests of justice" are found in s. 683(1) as well. From the jurisprudence under the latter section and from the plain intent of the guiding principle reflected in the phrase it is evident the discretion of the court is wide. In my consideration of these applications I have been guided by the nature of the principal issues raised by the appellant.
• 21 The Attorney General's application which is tendered is a transcript of the evidence of the complainant given at the preliminary hearing and accepted by consent as her evidence at the trial. As the trial judge did not find it necessary to set out in reasons the evidence upon which he found the elements of the offence of sexual assault made out it is, in my view, in the interests of justice this material be before us and I would so order.
The Hospital's application.
• 22 The evidence sought to be introduced and the disposition I would propose are summarized as follows:
| 1. | The updated report of Dr. Semrau dated February 12, 1993. Its purpose is to provide a "current psychiatric opinion". As it was prepared long after the trial it meets none of the traditional tests. It is not determinative of any of the issues raised on this appeal and it is potentially prejudicial to the appellant. In my view it is not in the interests of justice that this document be admitted. |
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| 2. | Dr. Semrau's report of March 21, 1992 prepared for Mr. Davidson's counsel before trial. I would not admit this report except for the list of the material he relied upon as the basis for the opinion I summarized earlier in these reasons. |
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| 3. | The next two items consist of the Board's reasons for and the formal order of its initial disposition on June 29, 1992. This material constitutes a necessary link between the trial judge's finding and the disposition hearing in August, 1992. I would admit both. |
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| 4. | The next two items consist of assessment reports submitted to the Board for its use at the initial disposition hearing in June, 1992. The proper disposition of this appeal does not require the admission of these reports although it would have been appropriate to have included them in the original appeal book if it was established they were before the Board at the disposition hearing in August, 1992. I would not admit them. |
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| 5. | The next item is a transcript of Dr. Semrau's testimony at trial. There is no indication of any use made of it by the Board and I am not convinced it would be of assistance in this appeal. I would not admit it. |
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| 6. | The next two items consist of reports referred to in Mr. Shieh's assessment report marked as exhibit 2 in the August hearing. It is said these reports were available to the Board. They were not called for during the hearing on August 31 and in the absence of some more relevant reason I would not admit these reports. |
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| 7. | The next six items, with one exception, comprise a group of police statements. I would not admit these. Although they were referred to by one of the witnesses at the August 31 hearing, they were not called for by the Board or any counsel at that time and in the absence of any other reason I would not admit them. The exception is the indictment which should be a formal part of the record before us and accordingly I would admit it. |
• 23 I would dispose of the two applications to enlarge the record in the manner I have indicated.
• 24 In my view the documents comprising the appeal book should have included all those before the Board and relevant to its disposition as well as the two reports marked as exhibits. The Board has a continuing jurisdiction over those in custody of the Hospital. The disposition process does not start afresh each time an application is made to the Board. An examination of what was before the Board at the two disposition hearings would have led to the preparation of an appeal book which more truly constituted the record of the August disposition hearing. This should be sorted out before an application to settle the contents of the appeal book is made under s.672.73(1) of the Code and is an administrative responsibility which could properly rest with the Hospital.
The principal issues.
• 25 As stated by the appellant the two principal issues raised in this appeal are:
| 1. | Does s.672.54 of the Criminal Code place the onus on the Crown and the hospital to prove beyond a reasonable doubt that the patient is a significant threat to public safety? |
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| 2. | Does Section 7 of the Charter mandate that s.672.54 be interpreted to place the onus on the Crown and the hospital to prove beyond a reasonable doubt that the patient is a significant threat to public safety? |
Issue No. 1.
• 26 In essence the submission made on behalf of Mr. Davidson is that proceedings before the Board of the kind in question here are adversarial in nature, or at least party and party in character; that the liberty of the subject is at stake and the safeguard of that liberty associated with the administration of the criminal law should be continued in and applied to proceedings before the Board. The specific safeguard invoked is the presumption of innocence and the consequential burden of proof on the Crown to prove disputed facts beyond a reasonable doubt.
• 27 It was said on behalf of Mr. Davidson that the disposition proceedings before the Board were the equivalent of the sentencing which would have taken place if he had not been found mentally disordered.
• 28 Reliance was placed upon R. v. Gardiner (1982), 68 C.C.C. (2d) 447 (S.C.C.). In that case the Crown appealed from a judgment of the Court of Appeal of Ontario which required proof beyond a reasonable doubt of facts disputed at the sentencing hearing and sought to be relied upon by the Crown as aggravating circumstances. The Crown contended proof of such facts should be resolved on the balance of probabilities. The following extract from the headnote expresses the view of the majority of the court on this point:
Both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing. No good purpose would be served by adoption of the civil burden of proof or some other standard such as clear and convincing evidence. |
• 29 I think, with respect, the parallel between the sentencing part of a criminal trial and the disposition proceeding under s. 672.54 breaks down at the outset.
• 30 A sentence is imposed upon one assumed to have intended the natural and probable consequences of his or her acts. The principles of sentencing include rehabilitation and personal deterrence because the convicted person is assumed to be rational and autonomous.
• 31 Under s. 672.54 of the Code the treatment of one unable to judge right from wrong is intended to cure the defect. It is not penal in purpose or effect. Where custody is imposed on such a person the purpose is prevention of anti-social acts, not retribution.
• 32 The following observation of Mr. Justice Macfarlane of this Court in Re Rebic and The Queen (1986), 28 C.C.C. (3d) 154 at p. 171, quoted with approval in R. v. Swain, supra, at p. 530 illustrates this basic difference:
The objective of the legislation is to protect society and the accused until the mental health of the latter has been restored. The objective is to be achieved by treatment of the patient in a hospital, rather than in a prison environment. |
| (emphasis in S.C.R. report) |
• 33 I think the underlying fallacy in the appellant's submission is the assumption that proceedings before the Board are adversarial.
• 34 The character of the relationship between the Board and one in the position of Mr. Davidson can best be ascertained by a consideration of the legislation, the nature of the proceeding and the purpose of the enactment.
• 35 I turn first to the composition of the Board and the nature of the task assigned to it.
• 36 As its composition and powers indicate, a board of review set up under Part XX.I of the Code is a specialized administrative tribunal, the skills of whose members provide institutional insight into the legal and medical problems of mental health. It is given inquisitorial powers to summon witnesses and compel them to give evidence.
• 37 Its task, and here I speak only of a disposition of one found not criminally responsible for a criminal act, is to balance the protection of society on the one hand and the right of the subject to his or her liberty unless deprived of it in accordance with the principles of fundamental justice. Although the proceedings are informal, a record must be kept such as to provide the basis for an appeal to the Court of Appeal. Post-trial detention is neither arbitrary nor indeterminate. The requirements of s.672.54 direct the Board to put into perspective the mental condition, goals and needs of the mentally disordered person with the interests of the public and, where an absolute discharge is not warranted, to choose the least onerous and least restrictive conditions on the liberty of that person's liberty.
• 38 Unlike the polar opposites of conviction and acquittal the options open to the Board where absolute discharge is not an acceptable alternative cover a wide spectrum.
• 39 Counsel for the appellant contend there is a burden of proof on the Crown (comprised, it is said, of the Hospital, Dr. Murphy and Mr. Shieh - the authors of two assessment reports) to demonstrate beyond a reasonable doubt that Mr. Davidson is a significant threat. While this is an attractive thesis for the lawyer it misapprehends the role of the Hospital and those who are called upon to provide assessment reports. It would be invidious for the Hospital or the professional staff to be placed in an adversarial relationship with those in their care.
• 40 And, ultimately, it would be contrary to the interests of the accused if the members of the Board were required to instruct themselves to accept what was unfavourable to the accused in an assessment report only if facts upon which the opinions expressed rested were proven beyond a reasonable doubt. Parliament did not intend such a procedure be followed nor, in light of the judgments in R. v. Swain, supra, and R. v. Pearson, [1993] 3 S.C.R. 665, is this procedure required.
• 41 In the latter case Chief Justice Lamer quoted with approval the following from R. v. Lyons, [1987] 2 S.C.R. 309 at p. 361:
It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another. |
• 42 This was in the context of discussing examples of the deprivation of liberty where there were reasonable grounds for doing so, rather than only after guilt has been established beyond a reasonable doubt.
• 43 And after examining a number of examples of how various stages of the criminal process may reflect the assumed innocence of an accused Lamer C.J.C. went on to say at p. 685:
Each of these cases may be seen as an example of the broad but flexible scope of the presumption of innocence as a principle of fundamental justice under s.7 of the Charter. The principle does not necessarily require anything in the nature of proof beyond reasonable doubt, because the particular step in the process does not involve a determination of guilt. |
In the case at bar, no step in question involves determination of guilt.
• 44 If the hearing takes on the character of a party and party proceeding, as it may, the Attorney General is the proper representative of the Crown as representing the public interest.
• 45 One of the aspects of then s.542(2) of the Code which attracted the disapproval of the Supreme Court of Canada in R. v. Swain, supra, was the absence of any provision for appeal from the Lieutenant-Governor's warrant of detention. Section 672.78(1) of the Code now provides for an appeal to this Court allowing a disposition order to be set aside where the Court is of the opinion that
| (a) | it is unreasonable or cannot be supported by the evidence; |
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| (b) | it is based on a wrong decision on a question of law; or |
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| (c) | there was a miscarriage of justice. |
• 46 This provision fully equips an appellate court to correct error in a disposition hearing.
Issue No. 2.
• 47 The question here is whether the failure on the part of Parliament to stipulate that there is an onus on the Crown to demonstrate beyond a reasonable doubt that any restriction on the liberty of a person in the custody of the Hospital in the circumstances of this case is justified. It is contended that unless we read into the statutory scheme in the Criminal Code the requirement of such an evidentiary burden, the scheme must fail as inadequate under the provisions of s.7 of the Charter.
• 48 In my view, this challenge must fail.
• 49 In R. v. Swain, supra, Chief Justice Lamer observed that the dominant characteristic of what was then s.542(2) of the Code and its surrounding legislative scheme was the protection of society from dangerous people who committed criminal acts through the prevention of such acts in the future. Treatment was incidentally involved.
• 50 The objectionable constitutional feature of s.542(2) in terms of the Canadian Charter of Rights and Freedoms lay not in the fact of detention of such people. The detention was objectionable by virtue of being automatic, that is to say, imposed without a hearing, and indeterminate. There was no relieving provision. Possessing these characteristics, or lack of them, the statutory code brought into force by virtue of a finding of insanity under s.16 offended both ss. 7 and 9 of the Charter to an extent beyond redemption under s.1.
• 51 The scheme of Part XX.I, as it relates to this appeal, initially provides an opportunity for the trial court to make a disposition of the accused. This enables that court to discharge absolutely a person not criminally responsible but who, in the opinion of the trial judge, while a dangerous person by virtue of the act committed, does not nevertheless pose a significant threat to the safety of the public.
• 52 Those not so dealt with by the trial court come under the custodial regime of the hospital and the procedures to which I have already referred.
• 53 In neither R. v. Swain nor R. v. Pearson was the issue, as framed by the appellant here, directly raised. However, it is implicit from the judgment of the Chief Justice in R. v. Swain that there is a valid legislative object in the prevention of crime through the detention of one mentally ill who has, in that condition, committed a criminal act until such time as he or she is determined not to be a significant threat to the safety of the public.
• 54 In my view, that legislative object is served in s.672.54 in a manner which is proportional to its purpose. Parliament enacts laws of general application. A dangerous person may be one who has committed a murder or one who has committed a minor property offence. The scheme of the legislation is sufficiently flexible to accommodate this spectrum.
• 55 As I have indicated, not all aspects of the criminal justice system require a standard of proof beyond a reasonable doubt. I add to the examples referred to in R. v. Swain the provisions in the Young Offenders Act for transfer to the ordinary courts. Although these provisions were amended in 1992, and the case to which I will refer was decided before these amendments, the observations of Madam Justice McLachlin, speaking for the majority, in R. v. M.(S.H.M.) (1989), 50 C.C.C. (3d) 503 (S.C.C.) at p. 546-547 are pertinent. In her consideration of the judgments in the Alberta courts she said at p. 546:
What then is the standard of proof which the applicant must meet? The Court of Appeal rejected the view of the judge below that there was a "heavy onus" on the party seeking transfer. I agree that it would be wrong as a matter of law to say that the applicant must meet a heavy onus .... Parliament having failed to so stipulate that the case for transfer must be "exceptional", or "clear" or "necessary", it is not for this Court to do so .... The judge charged with the task of making this decision must consider the factors set out in s.16(1) and (2) in the context of the philosophy of the act toward young offenders to the end of determining whether the applicant has satisfied him that a transfer should be ordered. The task, involving as it does the balancing of conflicting factors, is not easy. But it will not be rendered lighter, in my opinion, by imposing on the scheme set out in the Act an overlay of concepts such as "heavy onus" or "very heavy onus". |
And at p. 547 she continued:
Nor do I find it helpful to cast the issue in terms of a civil or criminal standard of proof. Those concepts are typically concerned with establishing whether something took place. |
• 56 In s.672.54 Parliament imposed on the court or a review board the difficult task of determining the likelihood of something happening in the future. The implications of this were discussed by this Court in Orlowski and need not be repeated here.
• 57 I adopt as apposite to the case at bar Madam Justice McLachlin's conclusion that it was not helpful to cast the issue in terms of a civil or criminal standard of proof.
• 58 In my view, the appellant fails in the two principal issues raised in this appeal. No miscarriage of justice results. Mr. Davidson is at large upon conditions which will be reviewed as provided for under s.672.81 of the Code. It would not be appropriate in this circumstance for this Court to comment further on the merits of the present disposition.
• 59 I would dismiss the appeal.
GOLDIE J.A.
WALLACE J.A.:— I agree.
HOLLINRAKE J.A.:— I agree.
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