Kobzar v. Her Majesty the Queen et al. [Indexed as: R. v. Kobzar]
110 O.R. (3d) 670
2012 ONCA 326
Court of Appeal for Ontario,
Goudge, MacPherson and Juriansz JJ.A.
May 16, 2012
Criminal law -- Mental disorder -- Dispositions -- Appeal -- Suspension of absolute discharge pending disposition of Crown's appeal under s. 672.75 violating NCR accused's right to liberty -- Deprivation of liberty not according with fundamental principle of justice as it occurs without due process -- Section 672.75 also violating s. 9 of Charter -- Violations not justified under s. 1 of Charter as s. 672.75 is not minimally impairing of NCR accused's rights -- Canadian Charter of Rights and Freedoms, ss. 7, 9 -- Criminal Code, R.S.C. 1985, c. C-46, s. 672.75.
Criminal law -- Mental disorder -- Jurisdiction -- Crown appealing Ontario Review Board's disposition of absolute discharge -- Absolute discharge suspended under s. 672.75 of Criminal Code pending disposition of appeal -- NCR accused bringing motion challenging constitutionality of s. 672.75 -- Court of Appeal having jurisdiction to hear constitutional challenge -- Hearing of motion appropriate despite fact that Crown's appeal had already been dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 672.75.
K was found not criminally responsible ("NCR") on account of mental disorder of criminal harassment and mischief, and was ordered detained by the Ontario Review Board. Following its annual reviews in 2009 and 2010, the Review Board ordered that K be discharged with conditions. In 2011, the Review Board ordered that K be discharged absolutely. The Crown appealed. Pursuant to s. 672.75 of the Criminal Code, K's discharge was automatically suspended pending the determination of the appeal. His status reverted to a conditional discharge. K brought a motion attacking the constitutionality of the automatic suspension of the absolute discharge under s. 672.75. The Crown's appeal was heard first and was dismissed.
Held, the motion should be granted.
Per Goudge and MacPherson JJ.A.: The court had jurisdiction to hear the motion. The motion challenged the constitutionality of the restraint on the applicant's liberty pending the Crown's appeal, an appeal that the criminal court required to be brought to the Court of Appeal. That statutory regime makes the Court of Appeal responsible for the appeal procedure from Review Board decisions. A functional and structural approach to that responsibility encompasses the determination of the constitutionality of restraints on a respondent's liberty pending appeal. While the constitutional issue was moot as the Crown's appeal had been dismissed, the motion was not moot when it was brought. Moreover, the motion raised an important issue for those NCR accused who are absolutely discharged by review boards. Although it will recur for others in the future, the issue is alive for an individual respondent only for a limited time. Without the exercise of the court's discretion, the issue is likely to remain evasive of judicial review.
A decision by a review board to absolutely discharge an NCR accused is not one to be interfered with lightly. Section 672.75 infringes an NCR accused's liberty interests under s. 7 of the Canadian Charter of Rights and Freedoms by mandating [page671] that an NCR who is absolutely discharged by a review board revert to the conditions that applied the day before the absolute discharge order. Section 672.75 is not in accordance with the principles of fundamental justice as the suspension of the absolute discharge occurs without due process. Section 672.75 also violates s. 9 of the Charter by mandating a loss of liberty without any consideration of rational criteria or standards. The Charter violations are not justified under s. 1 of the Charter as s. 672.75 is not minimally impairing of the NCR accused's rights. The appropriate remedy is a declaration that the reference to "paragraph 672.54(a)" in s. 672.75 is of no force or effect. The declaration of invalidity is suspended for 12 months.
Per Juriansz J.A. (dissenting): The motion challenging the constitutionality of s. 672.75 was not properly before the court. The Court of Appeal lacked jurisdiction to deal with it.
MOTION for a declaration of invalidity.
Cases referred to R. v. Swain, [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, 125 N.R. 1, J.E. 91-765, 47 O.A.C. 81, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253, 3 C.R.R. (2d) 1, 12 W.C.B. (2d) 582; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381, consd
Other cases referred to Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, 57 D.L.R. (4th) 231, 92 N.R. 110, [1989] 3 W.W.R. 97, J.E. 89-499, 75 Sask. R. 82, 47 C.C.C. (3d) 1, 33 C.P.C. (2d) 105, 38 C.R.R. 232, 7 W.C.B. (2d) 61; Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134, [2011] S.C.J. No. 44, 2011 SCC 44, 244 C.R.R. (2d) 209, 310 B.C.A.C. 1, 421 N.R. 1, 2011EXP- 2938, J.E. 2011-1649, EYB 2011-196343, 336 D.L.R. (4th) 385, 272 C.C.C. (3d) 428, 205 A.C.W.S. (3d) 673, 96 W.C.B. (2d) 322, 86 C.R. (6th) 223, 22 B.C.L.R. (5th) 213, [2011] 12 W.W.R. 43; Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9, 2007 SCC 9, 276 D.L.R. (4th) 594, 358 N.R. 1, J.E. 2007-455, 54 Admin. L.R. (4th) 1, 44 C.R. (6th) 1, 152 C.R.R. (2d) 17, 59 Imm. L.R. (3d) 1, 154 A.C.W.S. (3d) 363, EYB 2007-114995; Cunningham v. Canada, [1993] 2 S.C.R. 143, [1993] S.C.J. No. 47, 151 N.R. 161, J.E. 93-847, 62 O.A.C. 243, 11 Admin. L.R. (2d) 1, 80 C.C.C. (3d) 492, 20 C.R. (4th) 57, 14 C.R.R. (2d) 234, 19 W.C.B. (2d) 276; Kobzar (Re), [2012] O.J. No. 1010, 2012 ONCA 144; Kobzar (Re), [2011] O.R.B.D. No. 742; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, 2001 SCC 81, 206 D.L.R. (4th) 444, 279 N.R. 345, J.E. 2002-9, 154 O.A.C. 345, 159 C.C.C. (3d) 321, 47 C.R. (5th) 316, 88 C.R.R. (2d) 189, 51 W.C.B. (2d) 452, REJB 2001-27030; R. v. B. (D.) (2008), 92 O.R. (3d) 399, [2008] 2 S.C.R. 3, [2008] S.C.J. No. 25, 2008 SCC 25, EYB 2008-133366, J.E. 2008-1070, 374 N.R. 221, 77 W.C.B. (2d) 524, 231 C.C.C. (3d) 338, 237 O.A.C. 110, 293 D.L.R. (4th) 278, 56 C.R. (6th) 203, 171 C.R.R. (2d) 133; R. v. Farinacci, [1993] O.J. No. 2627, 109 D.L.R. (4th) 97, 67 O.A.C. 197, 86 C.C.C. (3d) 32, 25 C.R. (4th) 350, 18 C.R.R. (2d) 298, 22 W.C.B. (2d) 27 (C.A.); R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124; R. v. Owen, [2003] 1 S.C.R. 779, [2003] S.C.J. No. 31, 2003 SCC 33, 225 D.L.R. (4th) 427, J.E. 2003-1142, 173 O.A.C. 285, 174 C.C.C. (3d) 1, 11 C.R. (6th) 226, 57 W.C.B. (2d) 192; Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, 24 D.L.R. (4th) 536, 63 N.R. 266, [1986] 1 W.W.R. 481, J.E. 86-99, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, 15 W.C.B. 343; United States of America v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, 268 D.L.R. (4th) 1, 351 N.R. 1, J.E. 2006-1461, 209 C.C.C. (3d) 353, 39 C.R. (6th) 207, 143 C.R.R. (2d) 140, 69 W.C.B. (2d) 711, EYB 2006-107828 [page672]
Statutes referred to An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, c. 43 Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 15 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52(1) Criminal Code, R.S.C. 1985, c. C-46, s. 542(2), Part XX.1 [as am.], ss. 672.38 [as am.], 672.43 [as am.], 672.45(1), 672.5 [as am.], 672.54 [as am.], (a), 672.57, 672.58, 672.72(2) [as am.], (3), 672.75, 672.76, (2)(a), (b), 672.77, 672.81(1), 679(3)(c), 680(1) Inquiries Act, R.S.C. 1985, c. I-11, ss. 4, 5
Rules and regulations referred to Criminal Appeal Rules, rules 39(2), 43(3)
Authorities referred to Hogg, P.W., Constitutional Law of Canada, 5th ed., looseleaf (Toronto: Carswell, 1996)
Joseph Di Luca and Erin Dann, amicus curiae. Joanne K. Stuart, for respondent Her Majesty the Queen. Ewa Krajewska, for respondent Ontario Shores Centre for Mental Sciences. Roy Lee, for Attorney General of Canada.
GOUDGE and MACPHERSON JJ.A.: -- A. Introduction
[1] The Crown appealed from an Ontario Review Board (the "Review Board") disposition discharging the applicant, Yuriy Kobzar, absolutely (by a 4-1 majority). The appeal was heard by this panel on February 29, 2012. We dismissed the appeal in a four paragraph endorsement on the same date on the basis that the Review Board's decision was reasonable [[2012] O.J. No. 1010, 2012 ONCA 144].
[2] When the Crown filed its notice of appeal on June 24, 2011 against the absolute discharge disposition, pursuant to s. 672.75 of the Criminal Code, R.S.C. 1985, c. C-46, the applicant's absolute discharge was automatically suspended pending the determination of the appeal. Pursuant to s. 672.77 of the Code, on the suspension of the absolute discharge the disposition that was in effect before the absolute discharge was ordered revived. Accordingly, from June 24, 2011, when the Crown filed its notice of appeal, to February 29, 2012, when the appeal hearing took [page673] place, the applicant's status reverted to a conditional discharge. He lived in the community subject to the conditions that had been imposed by the Review Board at a hearing in 2010.
[3] In the context of the Crown appeal of the absolute discharge disposition of the Review Board, the applicant brought an application challenging the constitutionality of a portion of s. 672.75 of the Criminal Code as infringing ss. 7 and 9 of the Canadian Charter of Rights and Freedoms. Although this panel dismissed the Crown appeal immediately following the hearing on February 29, we scheduled the argument of the applicant's Charter application for March 19, 2012.
B. Facts
[4] On October 18, 2006, Kenkel J. found the applicant not criminally responsible on account of mental disorder ("NCR") of criminal harassment and mischief under $5,000. The disposition was deferred to the Review Board.
[5] In its initial disposition in 2007 and on its review in 2008, the Review Board ordered the detention of the applicant. Pursuant to these dispositions, the applicant was detained in a minimum-secure unit at the Ontario Shores Centre for Mental Health Sciences (the "hospital").
[6] Following its annual reviews in 2009 and 2010, the Review Board ordered that the applicant be discharged with conditions. The conditions included that he report to the hospital at least once per week, notify the Review Board of any change of address or telephone number, take prescribed medications on his consent, refrain from certain contacts or attending at certain locations and obtain permission to travel outside the province.
[7] Following the annual review in 2011, the Review Board ordered, on March 3, 2011 with reasons released on May 27, 2011 and reported at Kobzar (Re), [2011] O.R.B.D. No. 742, that the applicant be discharged absolutely. The majority of the Review Board, in a 4-1 decision, held at para. 43:
Applying the principles in Winko, we have not found with reasonable certainty a foreseeable and substantial risk of serious physical or psychological harm to members of the public caused by criminal conduct. We therefore do not find that the accused poses a significant threat to the safety of the public and have ordered that the accused be discharged absolutely.
[8] The Crown received the Review Board's decision on June 10, 2011. It filed a notice of appeal on June 24, 2011. Section 672.75 of the Criminal Code provides:
672.75 The filing of a notice of appeal against a disposition made under paragraph 672.54(a) or section 672.58 suspends the application of the disposition pending the determination of the appeal. [page674]
[9] The Review Board's order granting the applicant an absolute discharge was made pursuant to s. 672.54(a) of the Code.
[10] Section 672.77 of the Code provides:
672.77 Where the application of a disposition . . . is suspended, a disposition . . . that was in effect immediately before the disposition . . . appealed from took effect, shall be in force pending the determination of the appeal[.]
[11] Pursuant to this provision, the applicant's status reverted to a conditional discharge pending the determination of his appeal, a period of just over eight months.
[12] The applicant, with the assistance of amicus curiae, does not assert that the entire s. 672.75 of the Code is unconstitutional. He acknowledges that the automatic suspension of a disposition under s. 672.58, which deals with treatment orders, is appropriate. However, he asserts that the other component of s. 672.75, which creates an automatic suspension of an absolute discharge order, is unconstitutional. Accordingly, the remedy sought by the applicant is a declaration that the words "paragraph 672.54(a)" are of no force and effect.
C. Issues
[13] The issues are: (1) Does the court have jurisdiction to determine the constitutional issue raised by the applicant? (2) Do the words "paragraph 672.54(a)" in s. 672.75 of the Criminal Code violate ss. 7 and 9 of the Charter? (3) If the answer to (2) is yes, are these statutory words saved by s. 1 of the Charter? (4) If the answer to (2) is yes and the answer to (3) is no, what is the appropriate remedy?
D. Analysis
(1) Jurisdiction
[14] On January 31, 2012, Mr. Di Luca, who had been appointed amicus to assist the court, filed a notice of motion in the appeal seeking an order that s. 672.75 is contrary to the Charter and is of no force and effect. The consequence of success in this motion would mean the restoration of the respondent's absolute discharge pending the Crown's appeal.
[15] The motion and the appeal were scheduled before this court on February 29, 2012. [page675]
[16] The Crown, the respondent, amicus and the hospital attended on that date. The Crown and amicus on behalf of the respondent were prepared to begin by arguing the motion. The hospital initially took no position on the motion but, like the other parties, was prepared to argue the appeal. This court's view was that while the appeal should proceed, the motion should be put over to March 19, 2012, so that sufficient time for proper argument could be provided. The additional time was also to allow the Attorney General of Canada, who had received notice, to be invited to attend, given that this was a challenge to federal legislation.
[17] The parties then argued the appeal which was dismissed from the bench with oral reasons.
[18] On March 19, 2012, the Crown, the Attorney General of Canada and the hospital all opposed amicus' motion on the merits and argued in support of the constitutionality of s. 672.75. None of the parties argued that the court should not hear the motion on its merits. Indeed, amicus and the Crown agreed that the court had a clear jurisdiction to do so and should exercise its discretion to proceed.
[19] We agree that this court has the jurisdiction to entertain this motion. The motion was grounded in the facts of the respondent's situation pending his appeal to this court. It challenged the constitutionality of the restraint on his liberty pending that appeal, an appeal that the Criminal Code requires to be brought to this court. That statutory regime makes this court responsible for the appeal procedure from Review Board decisions. In our view, a "functional and structural" approach to that responsibility encompasses the determination of the constitutionality of restraints on the respondent's liberty pending appeal. See R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, 2001 SCC 81, per McLachlin C.J.C., at paras. 36, 43 and 70.
[20] Moreover, this court has the procedures and processes capable of fairly and justly resolving this incidental Charter issue. We do not think Parliament would have intended to turn over to another forum an interim issue as bound up with the appeal as this is.
[21] Had the respondent sought an order under s. 672.76 altering the restraints on his liberty pending appeal, it seems clear to us that the constitutionality of those restraints would have been in play. For amicus to be prevented from raising this issue because it was raised by a separate motion, not a s. 672.76 application, would be to allow form to triumph over substance. [page676]
[22] It might be said that since the appeal had been decided when the motion was heard, the motion could no longer affect the respondent's rights. In that sense, the constitutional issue is moot. See Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, at p. 353 S.C.R.
[23] However, the motion was not moot when it was brought. Had it been brought before the appeal, for the reasons we have outlined, the court would have been obliged to address the question as an issue arising in a proceeding in this court. The result would clearly have affected the respondent's rights. The fact that the appeal was heard first was due to the order of proceeding chosen by the court. In these circumstances, the court's discretion to hear the motion is clear. See Borowski, at p. 353 S.C.R.:
Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.
[24] A number of considerations make it appropriate for this court to exercise its discretion to proceed to adjudicate the motion.
[25] First, the motion raises an important issue for those NCR accused who are absolutely discharged by review boards. NCR accused are a group who are generally less likely to be in a position to vigilantly advance their legal rights in a timely fashion without the aid of this court's discretion.
[26] Second, although it will recur for others in the future, the issue is alive for an individual respondent only for a limited time, between the service of the notice of appeal and the hearing of the appeal. Without the exercise of the court's discretion, the issue is likely to remain evasive of judicial review.
[27] Third, as the Crown pointed out in its argument, there have been a limited number of Crown appeals from absolute discharges issued by the Review Board. The challenged section only operates when a Crown appeals from a disposition of absolute discharge by the Review Board. Therefore, it is not entirely clear when another opportunity will present itself for an NCR accused to bring this constitutional challenge.
[28] Fourth, the court has had the benefit in this case of able arguments on both sides of the issue.
[29] Finally, it is preferable for the court to exercise its discretion to address the issue rather than have the Superior Court of Justice do so in response to a stand-alone application. The issue arose in the course of an appeal to this court and would have to be decided here were it not moot. The Code stipulates that [page677] appeals from Review Board decisions are to be made to this court. It is an issue affecting a proceeding in this court and is appropriately decided by this court.
[30] We therefore conclude that we have jurisdiction to proceed and should exercise the court's discretion to adjudicate the issue raised by the motion.
(2) Constitutional issue
[31] The constitutional issue in this case relates to the rights of an NCR accused in the interim period between his absolute discharge by the Review Board and the determination of a Crown or hospital's appeal from such a discharge. Before addressing the specific constitutional issues advanced by amicus, we want to discuss, briefly, two contextual points to provide a framework for the constitutional analysis that will follow: (a) an overview of Part XX.1 of the Criminal Code; and (b) a description of the role of the Review Board in the operation of Part XX.1 of the Code.
(a) Part XX.1 of the Criminal Code: Mental disorders
[32] An impugned legislative provision must be analyzed in the context of the legislative scheme within which it is contained: Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134, [2011] S.C.J. No. 44, 2011 SCC 44, at para. 109. Section 672.75 is found within Part XX.1 of the Criminal Code, the part dealing with mental disorders. An examination of the history of this part of the Code is helpful in assessing the constitutionality of the impugned provision.
[33] Prior to the enactment of Part XX.1, an accused who was successful in establishing what was then called the "insanity defence" was subject to detention that would only end "at the pleasure of the Lieutenant Governor". In R. v. Swain, [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, the Supreme Court of Canada held that the previous regime was unconstitutional because it allowed for the automatic and indefinite detention of an NCR accused, in violation of the NCR accused's s. 7 liberty rights. It was in response to Swain that Parliament introduced Part XX.1 of the Criminal Code in 1991: An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, c. 43.
[34] As enacted, Part XX.1 reflects an entirely new approach to dealing with NCR accused based on a growing appreciation that punishment should not only fit the offence, it should also fit the offender. The Supreme Court of Canada affirmed the [page678] constitutionality of the main operative sections of Part XX.1 in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31. In Winko, at para. 21, McLachlin J. described Part XX.1 in the following terms:
Part XX.1 rejects the notion that the only alternatives for mentally ill people charged with an offence are conviction or acquittal; it proposes a third alternative. Under the new scheme, once an accused person is found to have committed a crime while suffering from a mental disorder that deprived him or her of the ability to understand the nature of the act or that it was wrong, that individual is diverted into a special stream. Thereafter, the court or a Review Board conducts a hearing to decide whether the person should be kept in a secure institution, released on conditions, or unconditionally discharged. The emphasis is on achieving the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately.
[35] The enactment of Part XX.1 has meant that the criminal justice system now contains two streams for persons convicted of committing crimes: the traditional stream for a non-NCR accused that typically involves incarceration and aims at denunciation of the crime, retribution for the crime's victims and rehabilitation of the accused; and the alternative stream for an NCR accused which involves therapeutic detention that provides the NCR accused treatment while protecting the public.
[36] The major difference between the two streams is evidenced by the rationale for the time spent in detention. In the traditional system, the sentence is intended to be proportional to the crime committed. In the NCR stream, the detention of the NCR accused does not correlate with the underlying offence. Rather, the regime is aimed at providing therapy for the NCR accused until he or she can longer be said to pose "significant threats" to the public.
[37] In the result, an NCR accused may be detained in a hospital for years based on a charge as trivial as shoplifting, while another NCR accused may be released within months on a charge as serious as homicide. In both cases, the main determining factor is the state of each accused at the time of discharge and not the crime that formed the basis for the original charge.
[38] In Winko, the NCR accused argued that his s. 15 Charter rights were infringed because of the longer detention he potentially faced as compared to a non-NCR accused convicted of the same crime. McLachlin J. rejected this argument, stressing the importance of the distinction between the two streams of the criminal justice system. She stated, at para. 94:
In asserting that NCR accused must be treated "the same" as criminally responsible offenders who commit the same criminal act, the appellants assume that the infringement of their liberty is meant to serve the same function that it does for those found guilty of criminal offences. As I noted, [page679] this is mistaken. Any restrictions on the liberty of NCR accused are imposed for essentially rehabilitative and not penal purposes. In the words of Taylor J.A., unlike the sanctions faced by a convicted person, the scheme that addresses NCR accused "exacts no penalty, imposes no punishment and casts no blame": Blackman v. British Columbia (Review Board) (1995), 95 C.C.C. (3d) 412 (B.C.C.A.), at p. 433. Accordingly, a formalistic comparison of the "sentences" imposed on these two types of individuals belies a purposive understanding of the statutory provisions in issue. (Emphasis added)
[39] To repeat, the length of detention of an NCR accused only depends on whether he or she continues to pose a "significant risk" to the public. As the Supreme Court of Canada noted in Swain, at p. 1008 S.C.R.: "As the individual becomes less of a threat to society, the criminal law progressively loses authority".
[40] Parliament's alternative regime, under Part XX.1, which is specifically tailored to deal with NCR accused, functions in the following way: once a judge or jury enters a verdict of not criminally responsible on account of mental disorder, the person found NCR becomes subject to this alternative regime. The court may then hold a disposition hearing: s. 672.45(1). If the court does not make a disposition, a hearing is held by the Review Board, which was established under s. 672.38. The Review Board is mandated to conduct an initial review hearing to determine whether to detain, discharge on certain conditions, or absolutely discharge the accused: s. 672.54. If the NCR accused is not absolutely discharged, the Review Board is further mandated to hold a hearing to review its decision on, at least, an annual basis: s. 672.81(1).
(b) Role of the Review Board
[41] Review boards play a central role in the regime established under Part XX.1 of the Code. These boards are tasked with evaluating all relevant factors on an ongoing basis to assess whether the NCR accused poses a significant threat to the safety of the public. They are specialized tribunals with expert membership and extensive powers. Review boards may, inter alia, use all the powers conferred on a commissioner by ss. 4 and 5 of the Inquiries Act, R.S.C., 1985, c. I-11, compel the attendance of witnesses and issue warrants of committal: ss. 672.43, 672.5 and 672.57. Referring to review boards in R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, [2003] S.C.J. No. 31, at para. 29, Binnie J. stated:
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 [page680] 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. [Citations omitted]
[42] McLachlin J. summarized the conduct of hearings before review boards succinctly in Winko, at para. 54:
The Crown may often not be present at the hearing. The NCR accused, while present and entitled to counsel, is assigned no burden. The system is inquisitorial. It places the burden of reviewing all relevant evidence on both sides of the case on the court or Review Board. The court or Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraints . . . The legal and evidentiary burden of establishing that the NCR accused poses a significant threat to public safety and thereby justifying a restrictive disposition always remains with the court or Review Board. (Emphasis in original)
[43] The specialized nature of the Review Board combined with its broad inquisitorial powers and expertise has meant that appellate courts are compelled to defer to its decisions. As McLachlin J. went on to state in Winko, at para. 61:
It follows that the inquiries conducted by the court or Review Board are necessarily broad. They will closely examine a range of evidence, including but not limited to the circumstances of the original offence, the past and expected course of the NCR accused's treatment if any, the present state of the NCR accused's medical condition, the NCR accused's own plans for the future, the support services existing for the NCR accused in the community and, perhaps most importantly, the recommendations provided by experts who have examined the NCR accused. The broad range of evidence that the court or the Review Board may properly consider is aimed at ensuring that they are able to make the difficult yet critically important assessment of whether the NCR accused poses a significant threat to public safety . . . Appellate courts reviewing the dispositions made by a court or Review Board should bear in mind the broad range of these inquiries, the familiarity with the situation of the specific NCR accused that the lower tribunals possess, and the difficulty of assessing whether a given individual poses a "significant threat" to public safety. (Emphasis added)
[44] In sum, a decision by a review board to absolutely discharge an NCR accused is not one to be interfered with lightly.
Section 672.75 of the Criminal Code -- The impugned section
[45] Section 672.75 of the Criminal Code states:
672.75 The filing of a notice of appeal against a disposition made under paragraph 672.54(a) or section 672.58 suspends the application of the disposition pending the determination of the appeal. [page681]
[46] The automatic suspension of a disposition upon the filing of a notice of appeal occurs in two situations under s. 672.75: (1) where the appeal is from a Review Board decision to absolutely discharge an NCR accused (s. 672.54(1)); or (2) where the appeal is from a court order mandating an accused found to be unfit for trial to undergo treatment (s. 672.58). In the first situation, the filing of the appeal is by the Crown or concerned hospital. In the latter situation, it is usually the NCR accused who appeals against the mandatory treatment order. The case at bar concerns the first situation.
[47] The effect of a suspension of the application of an order of absolute discharge is explained in s. 672.77:
672.77 Where the application of a disposition or placement decision appealed from is suspended, a disposition, or in the absence of a disposition any order for the interim release or detention of the accused, that was in effect immediately before the disposition or placement decision appealed from took effect, shall be in force pending the determination of the appeal, subject to any disposition made under paragraph 672.76(2)(c).
[48] Finally, an NCR accused who is returned to the conditions that were "in effect immediately before the [absolute discharge] disposition" does have the ability to appeal this suspension of his discharge. It is open to an NCR accused to make an application under s. 672.76 to a judge of this court, upon giving notice to all parties involved. The judge may then, "if satisfied that the mental condition of the accused justifies it", order that the Review Board's disposition be carried out pending the determination of the appeal.
[49] Section 7 of the Charter states:
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[50] An applicant alleging a breach of s. 7 must demonstrate on the balance of probabilities that the challenged legislation interferes with, or limits, the applicant's right to life, or the right to liberty, or the right to security of the person, and that the interference or limitation is not in accordance with the principles of fundamental justice.
[51] The meaning of the phrase "principles of fundamental justice" has developed through judicial interpretation: Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, at pp. 511-13 S.C.R.; Cunningham v. Canada, [1993] 2 S.C.R. 143, [1993] S.C.J. No. 47, at pp. 151-52 S.C.R.; [page682] and P.W. Hogg, Constitutional Law of Canada, 5th ed., looseleaf (Toronto: Carswell, 1996), at para. 47.33. Courts have, over time, identified those principles that are fundamental to our notion of justice in Canada -- the tenets of our legal system.
Deprivation of liberty
[52] Amicus argues that s. 672.75 infringes an NCR accused's s. 7 liberty interests by mandating that an NCR accused who was absolutely discharged by a review board revert to the conditions that applied the day before the absolute discharge order. This may entail either reverting to a conditional discharge or being again detained in a hospital. In either case, the NCR accused's liberty rights are infringed.
[53] The respondent Crown concedes that an NCR accused's s. 7 right to liberty is infringed by s. 672.75. However, the Crown argues that any such infringement is "tempered" by the fact that the liberty deprivation will rarely result in a complete restriction on the NCR accused's liberty. As in this case, the NCR accused will go back to the "least onerous, least restrictive" disposition that preceded the discharge, the more likely outcome being a return to a conditional discharge.
[54] The Crown properly concedes that s. 672.75 breaches an NCR accused's liberty right under s. 7 of the Charter. However, the "tempering" effect noted by the Crown does not diminish the s. 7 infringement. The possibility of an NCR accused being returned to full detention at a hospital as a result of the application of s. 672.75 still exists. In addition, being released into the community "with conditions" can still impose restrictions on an NCR accused's liberty rights. These conditions can be onerous, for example, by requiring, as in Dr. Kobzar's case, weekly hospital-reporting requirements and a prohibition on leaving the province.
Principles of fundamental justice
[55] Legislation that limits the right to liberty of the person will attract s. 7 scrutiny. It will, however, survive that scrutiny and be upheld as constitutional unless it is shown to be contrary to the principles of fundamental justice. Amicus in this case claims that s. 672.75 is contrary to three principles of fundamental justice because the resulting deprivation (1) occurs without due process, (2) depends on a presumption of dangerousness and (3) is overbroad.
[56] We agree that s. 672.75 is not in accordance with the fundamental principle of justice of due process. We need not comment on the other claimed grounds. [page683]
Due process
[57] The state cannot detain people for significant periods of time without providing them with a fair procedural process. The impugned section violates the fundamental principle of justice that "no person shall lose his or her liberty without due process according to the law, which must involve a meaningful judicial process": Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9, 2007 SCC 9, at para. 28, citing United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, at para. 19. An NCR accused, under the impugned provision, is afforded no procedural safeguards before the automatic suspension of the absolute discharge order takes effect.
[58] The impugned section is notably similar to the section of the Criminal Code that was struck down by the Supreme Court of Canada in Swain. In that case, s. 542(2) of the Code required a trial judge, following a verdict of not guilty by reason of insanity, to automatically order the accused into "strict custody" until "the pleasure of the lieutenant governor of the province is known". The court determined that the provision violated s. 7 of the Charter because it resulted in an automatic deprivation of liberty without a hearing or any other procedural safeguard. Section 672.75 similarly causes an NCR accused to be automatically subjected to restrictions on his liberty upon the filing of a notice of appeal by the Crown or concerned hospital.
[59] Whereas in Swain the deprivation of liberty was brought about at the time the NCR accused was found not guilty by reason of insanity, s. 672.75 brings about the automatic deprivation of liberty after the NCR accused is absolutely discharged by a review board.
[60] The Crown, in response, argues that the impugned section accords with the principles of fundamental justice. Unlike in Swain, recourse from the suspension pending appeal is available by way of interim review under s. 672.76. The Crown contends that the onus on an NCR accused to initiate this interim review is not onerous.
[61] We do not accept this submission. The Supreme Court of Canada rejected a similar argument in Swain, at p. 1011 S.C.R.:
While I accept that the statutory scheme in question must be looked at in its entirety, I respectfully disagree with the majority position in the Court of Appeal that although s. 542(2) alone may infringe s. 7, the procedural requirements are met by ss. 545 and 547. Assuming, without deciding, that those subsequent provisions themselves accord with the principles of fundamental justice, any subsequent hearings or review cannot change the fact [page684] that the initial remand is ordered by the trial judge without any opportunity for a hearing. (Emphasis added)
[62] Similarly in this case, any subsequent right of the accused to apply for a review of the automatic suspension cannot cure s. 672.75's constitutional deficiency. A subsequent review, especially one that places the onus on the accused, does not change the fact that the initial restriction of the NCR accused's liberty is automatic upon the completion of an administrative act, without any due process.
[63] The Crown also argues that when an absolute discharge is under appeal, the issue of whether an NCR accused presents a significant threat to society remains in dispute. At the oral hearing, this argument was supplemented with a detailed review of all appeals from absolute discharges filed by the Crown since 1994. In total, the Crown filed 14 appeals from absolute discharges; eight of these appeals were allowed by this court, two were abandoned by the Crown and two were dismissed by this court (including the underlying appeal in Dr. Kobzar's case). The Crown's argument is, therefore, that it has used its powers under s. 672.75 sparingly and that, in the times that it has chosen to use its powers, its position has been generally vindicated by this court.
[64] We do not accept either argument. The decisions of a review board to absolutely discharge are final decisions that determine the issue of whether an NCR accused poses a "significant threat" to the public. These decisions are owed substantial deference by appellate courts. The mere availability of an appeal process from these decisions does not mean that the determination of the Review Board "remains in dispute".
[65] This is not to say that the decisions of a review board are of scientific precision. As McLachlin J. noted in Winko, at para. 59, it is simply unrealistic to expect absolute certainty from a decision of a review board:
Parliament has created a system of specialized Review Boards charged with sensitively evaluating all the relevant factors on an ongoing basis and making, as best it can, an assessment of whether the NCR accused poses a significant threat to the safety of the public. This assessment is not a guarantee, but it is unrealistic to expect absolute certainty from a regime charged with evaluating the impact of individual, human factors on future events. As La Forest J. wrote in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 364, in the context of the dangerous offender provisions of the Code:
. . . the life of the law has not been logic: it has been experience. The criminal law must operate in a world governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring. [page685]
[66] However, the potential fallibility of a review board's decision does not mean that it is justifiable to infringe the Charter rights of an NCR accused on the off chance that the decision is incorrect. Rather, it should be incumbent on the Crown to bring an application before an impartial body in cases where it believes that the Review Board's decision to absolutely discharge was in error. The onus on any such application must be on the Crown.
[67] The success rate of the Crown in these appeals is also of no moment. The constitutional validity of a statutory provision cannot turn on the success or failure rates in similar proceedings.
[68] The Crown also argues that any infringement of the liberty of an NCR accused by s. 672.75 is of short duration. Specifically, s. 672.72(2) and (3) of the Code and the Criminal Appeal Rules 39(2) and 43(3) safeguard against an indefinite suspension of an absolute discharge by mandating that Part XX.1 appeals be expedited and imposing stricter timelines for Part XX.1 appeals than what is in place for other criminal appeals.
[69] The finite period of the liberty infringement does not save s. 672.75. The Crown's own materials show that the duration of a suspension of an absolute discharge -- i.e., the time between the Crown's filing of a notice of appeal and the hearing of the appeal -- ranges from a few months to a year. In Dr. Kobzar's case, the suspension lasted a little over eight months. This duration of time is by no means short.
[70] However, even if the duration of the suspension were shorter, the constitutional deficiency would still remain. This is because the deficiency is not in the duration of the infringement. Rather, it is in the lack of due process in initiating the restriction of the NCR accused's Charter- protected liberty rights to begin with. Therefore, the constitutional infringement brought about by s. 672.75 cannot be justified on the basis that it is short in duration.
[71] We conclude this discussion of the lack of due process under s. 672.75 with a quote from Lamer C.J.C. in Swain, at p. 1009 S.C.R., that is equally applicable in this case:
The automatic detention required under s. 542(2) clearly deprives the appellant of his right to liberty. However, if this deprivation is in accordance with the principles of fundamental justice, there will be no limitation of his rights under s. 7 of the Charter. As was stated in Re B.C. Motor Vehicle Act, supra, at pp. 503-4, the principles of fundamental justice, while not limited to "natural justice", require at least those procedural safeguards. Because s. 542(2) provides for no hearing or other procedural safeguards whatsoever, I need not proceed any further to conclude that the deprivation of liberty is not in accordance with the principles of fundamental justice. (Emphasis added) [page686]
[72] Finally, the Crown's submission that the issue of whether an NCR accused presents a significant threat to society remains in dispute once the Crown or concerned hospital files an appeal merits further comment. This submission presumes that an NCR accused is dangerous until proven otherwise. However, in Winko the Supreme Court of Canada held precisely the opposite: Part XX.1 of the Code is constitutional only because it does not, at any point, presume that an NCR accused is dangerous.
[73] Section 672.54 empowers the Review Board to determine whether an NCR accused is to be detained in a hospital, released to the community with conditions or absolutely discharged. If an NCR accused is not to be presumed dangerous before his review hearing, then it cannot stand to reason that he should be presumed dangerous after the Review Board determines that he does not pose a significant threat to the public and orders him absolutely discharged. McLachlin J. expressed it in this fashion in Winko, at para. 96:
I acknowledge that if s. 672.54 were read as raising a presumption of dangerousness and as permitting courts and Review Boards to restrict the liberty of the NCR accused in the absence of a considered conclusion that he or she posed a significant threat to the safety of the public, as may regrettably sometimes have happened in the past, one could argue that it would serve to disadvantage NCR offenders in a discriminatory manner. Applied as suggested in these reasons, however, s. 672.54 serves to ensure that each NCR accused is treated appropriately, having regard to his or her particular situation and in a way that is minimally onerous and restrictive. All of this promotes the view that, whatever may have been the situation in the past, s. 672.54 recognizes that NCR accused are equally deserving of the law's concern, respect and consideration.
[74] McLachlin J.'s words in Winko, at para. 16, with regard to s. 672.54 are equally applicable to s. 672.75: "The history, purpose and wording of s. 672.54 of the Code indicate that Parliament did not intend NCR accused to carry the burden of disproving dangerousness." With that in mind, it is clear that the Crown's submission that the issue of whether an NCR accused is a "significant threat to the safety of the public" remains in dispute after a review board orders him absolutely discharged is not persuasive.
[75] Section 9 of the Charter provides:
- Everyone has the right not to be arbitrarily detained or imprisoned.
[76] In R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, at para. 44, the Supreme Court of Canada defined detention for the purposes of s. 9 in the following terms: [page687]
Detention under ss. 9 and 10 of the Charter refer to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
[77] Amicus argues that s. 672.75 violates s. 9 of the Charter by mandating a loss of liberty without any consideration of rational criteria or standards. Section 672.5 is triggered by filing a notice of appeal. As in Swain, the duty to detain is unqualified by standards whatsoever. The suspension of the absolute discharge is made without consideration of (1) the merits of the appeal, (2) the mental condition of the accused and (3) whether the accused poses any risk to the safety of the public. The total absence of criteria renders the law arbitrary.
[78] The Crown argues that s. 672.76 specifically provides a review mechanism that covers s. 672.75 and the appeal process forces the assessment in question to be addressed. In this way, s. 672.75 is not unqualified by standards, nor does it amount to unfettered discretion. In addition, s. 672.75 relates directly to the paramount objective of Part XX.1 of the Criminal Code, namely, the protection of the public view of an NCR accused's possible dangerousness.
[79] We do not accept this argument. We have already dealt with the inadequacy of s. 672.76 to cure the impugned section's constitutional deficiency and with the error in presuming that an NCR accused poses any danger. We would add that the Crown misinterprets the legislative goals behind Part XX.1 of the Code. In Winko, at paras. 21-22, McLachlin J. stated the following about the legislative objectives of Part XX.1 of the Code:
The emphasis is on achieving the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately.
Daniel Préfontaine, then an Assistant Deputy Minister at the Department of Justice, summarized the objectives of Part XX.1 before the Standing Committee on Justice and the Solicitor General:
The legislative proposals continue the long-standing objective of protecting the public from presently dangerous people who have committed offences, and the long-standing principle of fundamental fairness we have had in our laws that we do not convict people who are incapable of knowing what they are doing.
The aim of the bill is twofold: to improve protection for society against those few mentally disordered accused who are dangerous; and to recognize that mentally disordered offenders need due process, fundamental fairness and need the rights accorded to them for their protection when they come into conflict with the criminal law. [page688]
(House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and the Solicitor General, Issue No. 7, October 9, 1991, at p. 6.)
[80] The Crown's understanding of the legislative objective as one that is intended to protect the public from "an NCR accused's possible dangerousness" completely overlooks the dual objective of the legislation.
[81] Finally, having found that s. 672.75 violates an accused's s. 7 liberty rights as infringing on the procedural fairness principle of fundamental justice, it follows that we agree with amicus that s. 672.75 violates s. 9 of the Charter. In coming to this conclusion, we can do no better than refer to the reasons of Lamer C.J.C. in Swain, at pp. 1011-12 S.C.R.:
It is the position of the appellant that his arguments with respect to s. 9 also apply to the substantive (as opposed to procedural) aspects of s. 7. Since s. 9 is illustrative of s. 7, and since the central point of the substantive s. 7 arguments in this case is that the detention is ordered on the basis of no criteria (i.e., arbitrary detention), a discussion of s. 9 is sufficient and I will proceed with that forthwith. @7 . . . . .
The detention order is automatic, without any rational standard for determining which individual insanity acquittees should be detained and which should be released. I need not determine at this point what standard would be required by s. 9 in order to detain an insanity acquittee. The duty of the trial judge to detain is unqualified by any standards whatsoever. I cannot imagine a detention being ordered on a more arbitrary basis.
Conclusion
[82] For these reasons, we conclude that the words "paragraph 672.54(a)" in s. 672.75 of the Criminal Code violate ss. 7 and 9 of the Charter.
(3) Section 1 of the Charter
[83] Section 1 of the Charter provides:
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[84] The Crown contends that s. 672.75 is rationally connected to the pressing and substantial objective of protection of the public in that it provides an automatic safeguard where the threat posed by an NCR accused remains in dispute. The review mechanism under s. 672.76, when initiated by an NCR accused, satisfies the requirement that the NCR accused's liberty right be only minimally impaired. [page689]
[85] We do not agree with this submission. We begin by observing that while a violation of s. 7 can theoretically be justified under s. 1 of the Charter, in reality s. 1 will rarely, if ever, trump a s. 7 infringement: R. v. B. (D.) (2008), 92 O.R. (3d) 399, [2008] 2 S.C.R. 3, [2008] S.C.J. No. 25, 2008 SCC 25, at para. 89.
[86] In any event, the limitation on an NCR accused's liberty established in s. 672.75 of the Criminal Code is not minimally impairing. The suspension is automatic and applies to all NCR accused without any consideration of whether they pose a risk to the safety of the public. The NCR accused's only recourse, after the deprivation of liberty has already occurred, is to make an application and attempt to satisfy a judge that his or her mental condition justifies ordering that the absolute discharge be carried out.
[87] A simple comparison with the provision immediately following s. 672.75 demonstrates that it is not minimally impairing. Pursuant to s. 672.76(2)(b), the liberty interests of an NCR accused who is given a disposition other than an absolute discharge will only be restricted pending appeal where an application is made to a judge who must be satisfied by the moving party (the Crown or hospital) that the restriction is justified having regard to the NCR accused's mental condition. It is difficult to understand why the mechanism established in s. 672.76 could not be applied equally to NCR accused who obtains an absolute discharge order from a review board. In the absence of such parallel treatment, it cannot be said that the words "in paragraph 672.54(a)" in s. 672.75 of the Criminal Code impair the right to liberty as little as possible.
(4) Remedy
[88] This is not an appropriate case for this court to read in procedural safeguards to render s. 672.75 compliant with constitutional requirements. The Supreme Court of Canada was of the same opinion in Swain. Lamer C.J.C., at p. 1011 S.C.R., stated it in the following terms:
[The] order of "strict custody" is thus automatically made immediately following the trial and before any hearing on the issue of current mental state. Even attempting to interpret s. 542(2) within the bounds of the Constitution, it is impossible to conclude that Parliament did not intend to authorize such conduct on the part of the trial judge. Because the wording of s. 542(2) is precise and requires the trial judge to order the insanity acquittee into strict custody immediately following the trial, this is not a situation in which this Court can simply "read in" procedural safeguards to make the legislation accord with constitutional requirements. [page690]
[89] The Attorney General of Canada submits that the appropriate remedy if we find a constitutional violation is to declare the reference to "paragraph 672.54(a)" in s. 672.75 to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, and to suspend the declaration of constitutional invalidity for 12 months.
[90] We agree with this submission and with the suspension of the declaration for 12 months. The 12-month suspension will allow, among other things, Parliament to deal with any concern that there is no process to permit the Crown to seek restrictions pending appeal on the liberty of an NCR accused who has been absolutely discharged.
E. Disposition
[91] The application is allowed. The words "paragraph 672.54(a)" in s. 672.75 of the Criminal Code violate ss. 7 and 9 of the Charter and are not saved by s. 1 of the Charter. These words are declared to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. This declaration is suspended for 12 months from the date of release of this judgment.
[92] JURIANSZ J.A. (dissenting): -- I appreciate the approach of my colleagues in entertaining the constitutional question raised by the respondent's notice of motion. Certainly, wherever possible, the courts should minimize procedural technicality in order to decide the substance of disputes quickly and efficiently. That approach, however, does not allow a court to stray outside the limits of its jurisdiction. A court's jurisdiction is fundamental in constitutional matters. In exercising their authority to declare that Parliament has acted unconstitutionally, the courts are themselves subject to the principle that all institutions are governed by law. The rule of law is undermined if declarations that laws enacted by Parliament are unconstitutional are grounded on questionable jurisdiction.
[93] The motion challenging the constitutionality of s. 672.75 of the Criminal Code is not properly before this court. This court lacks jurisdiction to deal with it.
[94] My colleagues proceed on the basis that this court has discretion to adjudicate the respondent's motion even though it was rendered moot by the court's disposition of the appeal on February 29, 2012 [[2012] O.J. No. 1010, 2012 ONCA 144]. Relying on Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, they purport to exercise the court's [page691] discretion to decide a moot constitutional issue. As I see it, the difficulty is not that the respondent's motion was rendered moot, but that the court never had jurisdiction to rule on the motion in the first place. Borowski is not applicable because it guides the discretion of the court that has jurisdiction over the moot question.
[95] I accept that this court may hear and determine at first instance a constitutional question that arises in the chain of reasoning necessary to determine a matter before it. In this case, as amicus readily acknowledged in oral argument, the motion raises a constitutional question irrelevant to the determination of the appeal before this court. The Attorney General's appeal raised the question whether the ORB [Ontario Review Board] had erred by granting the respondent an absolute discharge. Whether the statutory reversion of Mr. Kobzar's status to conditional discharge pending appeal infringed his constitutional rights has nothing to do with that question. The constitutional challenge, brought as an interlocutory motion in the Attorney General's appeal, is concerned only with damage Mr. Kobzar is alleged to have suffered after the notice of appeal was filed. Whether s. 672.75 is or is not constitutional could not, and did not, affect this court's determination of the merits of the appeal.
[96] Amicus relied on this court's decision in R. v. Farinacci, [1993] O.J. No. 2627, 109 D.L.R. (4th) 97 (C.A.) to support his claim that he could raise a constitutional challenge in this court in the first instance. Amicus points out that in Farinacci this court entertained a constitutional challenge to a provision of the Criminal Code as a matter of first instance.
[97] Farinacci is an entirely different case. In Farinacci, the constitutional question was one that arose in this court's determination of the matter before it. The question before the court was whether Mr. Farinacci should be released from detention pending appeal. He challenged the constitutionality of s. 679(3)(c) of the Criminal Code, which permits denial of bail pending appeal on the ground of "public interest". His constitutional challenge was plainly and directly connected to the determination of his application for bail pending appeal. By contrast, Mr. Kobzar's motion raises an independent constitutional question that is completely unconnected to the legal issues of the appeal in which he is respondent. Farinacci is not authority for the proposition that a motion can be filed in the Court of Appeal challenging at first instance the constitutionality of a statutory provision when the challenge does not arise out of the legal issue on appeal. [page692]
[98] Amicus submitted that if he had brought an application before a single judge of the Court of Appeal for an order under s. 672.76(2)(a), that single judge would have referred the important question raised by the motion to a panel, just as Dubin C.J.O. did in Farinacci, and "we would have ended up here". Section 672.76(2)(a) permits "a judge of the court of appeal", on application, to order that the disposition of a review board granting an absolute discharge "be carried out pending the determination of the appeal, notwithstanding section 672.75".
[99] Amicus' submission in favour of practicality does recognize that Dubin C.J.O.'s direction in Farinacci that a panel hear the matter was made pursuant to s. 680(1). Section 680(1) provides that a review by a panel of a denial of bail pending appeal by a single judge may take place only upon the direction of the chief justice of the Court of Appeal. Mr. Farinacci had applied to the chief justice pursuant to s. 680(1) after a single judge had refused his application for bail pending appeal. In Farinacci, there was a clear statutory basis for the procedure followed. Here, there is no provision equivalent to s. 680(1).
[100] Even assuming that the jurisdiction of a single judge under s. 672.76(2)(a) could be exercised by a panel, two difficulties remain. First, there is no application for an order under s. 672.76(2)(a) before the panel. Second, the constitutionality of s. 672.75 could never arise on an application for an order under s. 672.76(2)(a) because an order under s. 672.76(2)(a) is made "notwithstanding section 672.75". Thus, the court would never have to consider the constitutionality of s. 672.75 in order to make an order under s. 672.76(2)(a). Hence, treating the respondent's motion as one properly made to the Court of Appeal seeking an order under s. 672.76(2)(a) does not give this court jurisdiction to deal with the constitutional question.
[101] The respondent's motion is, in both form and substance, a free-standing motion challenging a statutory enactment of Parliament brought in the Court of Appeal at first instance. Amicus recognizes that he could have brought an application for a writ of habeas corpus or a free-standing Charter application in the Superior Court. He explained that he did not commence a proceeding in the Superior Court because appeals of orders of the Review Board and the status of a person found not criminally responsible pending appeal are exclusively the concern of the Court of Appeal. He submits that the Superior Court would have little interest and little insight in the operation of Part XX.1 of the Criminal Code. Moreover, the motion did not require an [page693] evidentiary record to be assessed and weighed by a fact-finder. Finally, he considered that the constitutional challenge would likely become moot when the appeal was decided and so wanted to have the challenge heard with the appeal. These considerations, even if they were sound, do not give this court jurisdiction.
[102] The essence of amicus' position seems to be that this panel should hear the respondent's motion as a matter of convenience. It would be convenient for the panel already scheduled to hear the Attorney General's appeal of the Review Board's disposition to hear the constitutional issue concerning Mr. Kobzar's status pending appeal at the same time. I accept that had the constitutional challenge been brought before the court by any of the proper procedures, it would not have reached this court in time to be heard together with the Attorney General's appeal.
[103] Convenience, however, is not a source of jurisdiction. The Attorney General of Canada was not in court when the court heard submissions on its jurisdiction to entertain the motion. The Attorney General of Ontario consented to the bringing of the motion. However, absence of objection or consent by the parties does not give the court jurisdiction.
[104] I conclude that this court has no jurisdiction to determine the constitutional question raised in the notice of motion served and filed in this appeal by the respondent. I would quash the motion as it is improperly before the court.
Motion granted.