Difference between revisions of "Mental Health and the Criminal Code (14:IX)"

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In British Columbia, there is no person currently designated as a “high-risk accused”. The only BC case involving a determination of “high-risk accused” status is [https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc220/2010bcsc220.html?autocompleteStr=R%20v%20Schoenbo&autocompletePos=1 ''R v Schoenborn'', (2010) BCSC 220] [''Schoenborn'']. The accused was found NCRMD and was currently held in a mental health facility. In April 2015, the BC Review Board granted Schoenborn escorted community access at the discretion of the Director of the facility in order to aid his rehabilitation. In 2017, the Attorney General of BC applied unsuccessfully to the BC Supreme Court to have Schoenborn designated as a “high-risk accused”.  After many days of evidence in court, the judge found that Schoenborn did not meet the criteria for a “high risk accused” ([https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc220/2010bcsc220.html?autocompleteStr=R%20v%20Schoenbo&autocompletePos=1 ''R v Schoenborn'', 2017 BCSC 1556]).  
In British Columbia, there is no person currently designated as a “high-risk accused”. The only BC case involving a determination of “high-risk accused” status is [https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc220/2010bcsc220.html?autocompleteStr=R%20v%20Schoenbo&autocompletePos=1 ''R v Schoenborn'', (2010) BCSC 220] [''Schoenborn'']. The accused was found NCRMD and was currently held in a mental health facility. In April 2015, the BC Review Board granted Schoenborn escorted community access at the discretion of the Director of the facility in order to aid his rehabilitation. In 2017, the Attorney General of BC applied unsuccessfully to the BC Supreme Court to have Schoenborn designated as a “high-risk accused”.  After many days of evidence in court, the judge found that Schoenborn did not meet the criteria for a “high risk accused” ([https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc220/2010bcsc220.html?autocompleteStr=R%20v%20Schoenbo&autocompletePos=1 ''R v Schoenborn'', 2017 BCSC 1556]).  


There is some discrepancy between the provinces as to whether the “high-risk accused” designation can be applied retroactively. In British Columbia, it has been found that applying a retroactive “high risk” designation to trials that occurred before the legislation came into effect is not unconstitutional ([https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc1556/2017bcsc1556.html?resultIndex=3 ''R v Schoenborn'' 2015 BCSC 2254]). However, Quebec courts made the opposite determination in 2015 (see [https://www.canlii.org/fr/qc/qccq/doc/2015/2015qccq2299/2015qccq2299.html?resultIndex=1 ''R v CR'', 2015 JQ No 2448]).
There is some discrepancy between the provinces as to whether the “high-risk accused” designation can be applied retroactively. In British Columbia, it has been found that applying a retroactive “high risk” designation to trials that occurred before the legislation came into effect is not unconstitutional ([https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc1556/2017bcsc1556.html?resultIndex=3 ''R v Schoenborn'' 2015 BCSC 2254]). However, Quebec courts made the opposite determination in 2015 (see [https://www.canlii.org/fr/qc/qccq/doc/2015/2015qccq2299/2015qccq2299.html?resultIndex=1 ''R c CR'', 2015 QCCQ 2299]).


When the Review Board renders a decision under section 672.54, it must consider “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.”  The 2014 Bill C-14 amendments have changed the wording from requiring the Review Board to make a decision that is “least onerous and least restrictive” to one that is “necessary and appropriate”. However, subsequent Review Board decisions and court decisions have confirmed that the intent and guiding principles from the Supreme Court of Canada case of [https://www.canlii.org/en/ca/scc/doc/1999/1999canlii694/1999canlii694.html?autocompleteStr=1999%202%20SCR%20625&autocompletePos=1 ''Winko v the Director of the Forensic Psychiatric Hospital'' [1999] 2 SCR 625] [''Winko''] still apply. Therefore, the principle of making the least onerous and least restrictive order still applies to Review Board decisions.  For further related case law please see [https://www.canlii.org/en/on/onca/doc/2015/2015onca444/2015onca444.html?resultIndex=1 ''Ranieri (Re)'' 2015 ONCA 444]; [https://www.canlii.org/en/on/onca/doc/2015/2015onca280/2015onca280.html?resultIndex=1 ''Re Osawe'', 2015 ONCA 280]; [https://www.canlii.org/en/on/onca/doc/2016/2016onca280/2016onca280.html?resultIndex=1 ''McAnuff (Re)'' 2016 ONCA 280].
When the Review Board renders a decision under section 672.54, it must consider “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.”  The 2014 Bill C-14 amendments have changed the wording from requiring the Review Board to make a decision that is “least onerous and least restrictive” to one that is “necessary and appropriate”. However, subsequent Review Board decisions and court decisions have confirmed that the intent and guiding principles from the Supreme Court of Canada case of [https://www.canlii.org/en/ca/scc/doc/1999/1999canlii694/1999canlii694.html?autocompleteStr=1999%202%20SCR%20625&autocompletePos=1 ''Winko v the Director of the Forensic Psychiatric Hospital'' [1999] 2 SCR 625] [''Winko''] still apply. Therefore, the principle of making the least onerous and least restrictive order still applies to Review Board decisions.  For further related case law please see [https://www.canlii.org/en/on/onca/doc/2015/2015onca444/2015onca444.html?resultIndex=1 ''Ranieri (Re)'' 2015 ONCA 444]; [https://www.canlii.org/en/on/onca/doc/2015/2015onca280/2015onca280.html?resultIndex=1 ''Re Osawe'', 2015 ONCA 280]; [https://www.canlii.org/en/on/onca/doc/2016/2016onca280/2016onca280.html?resultIndex=1 ''McAnuff (Re)'' 2016 ONCA 280].
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