R. v. CONWAY - British Columbia Review Board

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paramount concern, an NCR patient’s liberty interest has been held to be the Board’s “major preoccupation” within the fence posts staked by public safety (Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19). The Board fulfills its “primary purpose” therefore by protecting the public while minimizing incursions on patients’ liberty and treating patients fairly (Mazzei, at para. 32; Winko, at paras. 64-71; Penetanguishene, at para. 51). [89] Section 672.54 of the Criminal Code sets out the remedial jurisdiction of review boards, stating: Where a court or Review Board makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, 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. Accordingly, at a disposition hearing regarding an NCR patient, the Ontario Review Board is authorized to make one of three dispositions: an absolute discharge, a conditional discharge or a detention order. When making its disposition, the Board must consider the four statutory criteria:
the need to protect the public from dangerous persons, the patient’s mental condition, the reintegration of the patient into society and the patient’s other needs. [90] The Board has a “necessarily broad” discretion to consider a large range of evidence in order to fulfill this mandate (Winko, at para. 61). The Board’s assessment of the evidence must “take place in an environment respectful of the NCR accused’s constitutional rights, free from the negative stereotypes that have too often in the past prejudiced the mentally ill who come into contact with the justice system” (Winko, at para. 61). Upon considering the evidence, if the Board is not of the opinion that the patient is a significant threat to public safety, it must direct that the patient be discharged absolutely (s. 672.54(a); Winko, at para. 62). On the other hand, if the Board finds that the patient is, as in Mr. Conway’s case, a significant threat to public safety, an absolute discharge is not statutorily available as a disposition (s. 672.54; Winko, at para. 62). [91] A patient is not a significant threat to public safety unless he or she is a “real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying” (Winko, at para. 62). The conduct giving rise to the harm must be criminal in nature (Winko, at paras. 57 and 62). [92] Once a patient is absolutely discharged, he or she is no longer subject to the criminal justice system or to the Board’s jurisdiction (Mazzei, at para. 34). However, pending an absolute discharge, NCR patients are subject to a detention or conditional discharge order. The Board is entitled to include appropriate conditions in its orders (s. 672.54(b) and (c)). The appropriateness
Page 1 and 2: SUPREME COURT OF CANADA CITATION: R
Page 3 and 4: Cromwell JJ. ON APPEAL FROM THE COU
Page 5 and 6: Before this Court, the issue is whe
Page 7 and 8: and unless the legislature has clea
Page 9 and 10: Cases Cited Considered: Weber v. On
Page 11 and 12: Authors Cited Canada. House of Comm
Page 13 and 14: Section 24(1) states that anyone wh
Page 15 and 16: 2 S.C.R. 223; Okwuobi v. Lester B.
Page 17 and 18: . . . Mr. Conway is currently incar
Page 19 and 20: [16] Mr. Conway appealed to the Ont
Page 21 and 22: jurisdiction only for the purposes
Page 23 and 24: damages and a declaration under s.
Page 25 and 26: of the Parole Board’s statutory s
Page 27 and 28: Provincial offences courts, like ot
Page 29 and 30: accepted that the Mills test applie
Page 31 and 32: arguing that their daughter’s edu
Page 33 and 34: Commission. [paras. 39-40] The majo
Page 35 and 36: enefit of a reviewing court. In thi
Page 37 and 38: of the Act offended s. 15(1) of the
Page 39 and 40: Human Rights Commission and a human
Page 41 and 42: [67] In his view, a tribunal’s fa
Page 43 and 44: [72] Gonthier J. concluded that the
Page 45 and 46: law-makers that touch the people mu
Page 47 and 48: [82] Once the threshold question ha
Page 49: (Forensic Psychiatric Institute), [
Page 53 and 54: guarantees that the requisite exper
Page 55 and 56: discharges only to non-dangerous NC
Page 57 and 58: Appeal dismissed. Solicitors for th

R. v. CONWAY - British Columbia Review Board

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