R. v. LePage, [1999] 2 S.C.R. 744

Denis Lucien LePage Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada,

the Canadian Mental Health Association,

the Canadian Police Association and

Kenneth Samuel Cromie on behalf of

the Queen Street Patients’ Council Interveners

Indexed as: R. v. LePage

File No.: 26320.

1998: June 15, 16; 1999: June 17.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for ontario

Constitutional law -- Charter of Rights -- Fundamental justice -- Vagueness -- Improper onus -- Overbreadth -- Criminal Code providing for verdict of not criminally responsible on account of mental disorder -- Not criminally responsible accused can be absolutely discharged, conditionally discharged or detained -- Whether provisions infringe principles of fundamental justice -- Canadian Charter of Rights and Freedoms, s. 7 -- Criminal Code, R.S.C., 1985, c. C-46, s. 672.54.

Constitutional law -- Charter of Rights -- Equality rights -- Mental disability -- Criminal Code providing for verdict of not criminally responsible on account of mental disorder -- Not criminally responsible accused can be absolutely discharged, conditionally discharged or detained -- Whether provisions infringe right to equality -- Canadian Charter of Rights and Freedoms, s. 15 -- Criminal Code, R.S.C., 1985, c. C-46, s. 672.54.

The appellant has a long history of psychiatric disorders and has spent the majority of his adult life in a correctional facility or confined to a psychiatric hospital. After a troubled youth, he was convicted of manslaughter for the death of his aunt and sentenced to 12 years’ imprisonment. He was released in 1975, and in 1976 was convicted of several counts of contributing to the delinquency of a minor and committing indecent assault. The following year, the appellant was arrested outside the home of a therapist who had discontinued treatment of him. He was found not guilty of possession of a weapon for a purpose dangerous to the public peace by reason of insanity and ordered held at the pleasure of the Lieutenant Governor, pursuant to the Criminal Code provisions in effect at the time. While at the mental health centre, the appellant was charged with four counts of uttering threats against staff members, to which he pleaded guilty. Prior to sentencing, he sought a declaration that ss. 672.47 and 672.54 of Part XX.1 of the Criminal Code, dealing with accused found not criminally responsible by reason of mental disorder (“NCR”), violated ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms and were of no force and effect and an order that he be granted an absolute discharge. The trial judge held that the provisions violated s. 15(1) of the Charter and could not be saved by s. 1. He suspended his declaration of invalidity, however, and, because the appellant had not yet had a hearing under the new provisions, did not order that he be released unconditionally. The Court of Appeal allowed the Crown’s appeal.

Held: The appeal should be dismissed.

Per Lamer C.J. and Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.: For the reasons set out in Winko, s. 672.54 of the Code does not violate s. 7 or s. 15(1) of the Charter. It is valid legislation, carefully crafted to protect the liberty of the NCR accused to the maximum extent compatible with the person’s current situation and the need to protect public safety.

Per L’Heureux‑Dubé and Gonthier JJ.: For the reasons given in Winko, s. 672.54(a) of the Code violates neither s. 7 nor s. 15 of the Charter. However, it clearly requires the court or the Review Board to find that the NCR accused is “not a significant threat to the safety of the public” before it directs that he or she be absolutely discharged.

Cases Cited

By McLachlin J.

Applied: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625; referred to: Bese v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 695 (SCC), [1999] 2 S.C.R. 722; Orlowski v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 696 (SCC), [1999] 2 S.C.R. 733.

By Gonthier J.

Referred to: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625; Orlowski v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 696 (SCC), [1999] 2 S.C.R. 733; Bese v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 695 (SCC), [1999] 2 S.C.R. 722.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 15(1).

Criminal Code, R.S.C., 1985, c. C-46 [am. 1991, c. 43], Part XX.1, ss. 672.47, 672.54.

APPEAL from a judgment of the Ontario Court of Appeal (1997), 1997 CanLII 2236 (ON CA), 36 O.R. (3d) 3, 152 D.L.R. (4th) 318, 119 C.C.C. (3d) 193, 11 C.R. (5th) 1, [1997] O.J. No. 4016 (QL), reversing a decision of the Ontario Court (General Division) (1995), 40 C.R. (4th)

43, 1994 CanLII 7394 (ON SC), 28 C.R.R. (2d) 309, [1995] O.J. No. 823 (QL), declaring s. 672.54 of the Criminal Code to be unconstitutional. Appeal dismissed.

Daniel J. Brodsky and Mara B. Greene, for the appellant.

Eric H. Siebenmorgen and Riun Shandler, for the respondent.

Kenneth J. Yule and George G. Dolhai, for the intervener the Attorney General of Canada.

Janet L. Budgell and Jennifer August, for the intervener the Canadian Mental Health Association.

Timothy S. B. Danson, for the intervener the Canadian Police Association.

Paul Burstein and Leslie Paine, for the intervener Kenneth Samuel Cromie.

The judgment of Lamer C.J. and Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by

//McLachlin J.//

McLachlin J. --

I. Introduction

[1] This appeal requires us to consider the constitutionality of the provisions of the Criminal Code, R.S.C., 1985, c. C-46, for people found not criminally responsible (“NCR”) for crimes by reason of mental disorder. The same issue is raised in the companion appeals of Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, Bese v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 695 (SCC), [1999] 2 S.C.R. 722, and Orlowski v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 696 (SCC), [1999] 2 S.C.R. 733. I conclude that, read purposively, the provisions of the Criminal Code, specifically s. 672.54, are constitutional and would dismiss the appeal.

II. Facts

[2] Denis Lucien LePage is a 52-year-old man currently being detained at the Oak Ridge Division of the Penetanguishene Mental Health Centre. He has a long history of psychiatric disorders and has spent the majority of his adult life in a correctional facility or confined to a psychiatric hospital. After a troubled youth, Mr. LePage was convicted of manslaughter for the death of his aunt on October 4, 1966 and sentenced to 12 years’ imprisonment. He was released on January 17, 1975. In 1976, he was convicted of several counts of contributing to the delinquency of a minor and committing indecent assault. The following year, Mr. LePage was arrested outside the home of a therapist who had discontinued treatment of him. He was found to be carrying two firearms, bullets, and two pairs of handcuffs and, as a result, was charged with being in possession of a weapon for a purpose dangerous to the public peace. At the trial of that matter, Mr. LePage was found not guilty by reason of insanity and the court ordered that he be held at the pleasure of the Lieutenant Governor, pursuant to the Criminal Code provisions in effect at the time. Mr. LePage was sent to the Oak Ridge Division of the Penetanguishene Mental Health Centre where, apart from temporary stays in the Brockville Psychiatric Hospital and the Barrie jail, he has remained to this day. In 1991, Parliament amended the Criminal Code and Mr. Lepage became subject to the provisions of Part XX.1.

[3] Mr. Lepage has been diagnosed as suffering from a severe personality disorder with anti-social traits. While at the Oak Ridge Division of the Penetanguishene Mental Health Centre, Mr. LePage became increasingly resistant to therapy to the point that he refused to accept any treatment for his illness. He continued to exhibit threatening and verbally aggressive behaviour and, eventually, was charged with four counts of uttering threats against staff members. Mr. LePage pleaded guilty to these charges in December 1993. The applications forming the basis of this appeal arise from these proceedings and not, as with the companion appeals, from a decision of the Review Board.

III. Judgments Below

[4] Prior to Mr. LePage’s sentencing on the four charges of uttering threats, he sought a declaration that ss. 672.47 and 672.54 of Part XX.1 of the Criminal Code violated ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms and were of no force and effect and an order that he be granted an absolute discharge. Howden J. held that the provisions did not violate s. 7 but that they did violate s. 15(1) of the Charter and could not be saved by s. 1: (1995), 1995 CanLII 7435 (ON SC), 40 C.R. (4th) 43. However, he suspended his declaration of invalidity. Because Mr. LePage had not yet had a hearing under the new provisions, he did not order that Mr. LePage be released unconditionally.

[5] The Crown appealed to the Ontario Court of Appeal: (1997), 1997 CanLII 2236 (ON CA), 36 O.R. (3d) 3. For the majority, Doherty J.A. (Charron J.A. concurring) allowed the appeal, holding that Part XX.1 of the Criminal Code did not violate s. 15(1) of the Charter. However, Doherty J.A. recognized that many of Mr. LePage’s arguments, particularly those dealing with the allegedly improper onus imposed by Part XX.1, were more appropriately addressed under s. 7 of the Charter, rather than s. 15(1). Without addressing the merits of the s. 7 claim, he expressed the opinion that it would be improper to interpret the provisions as imposing a burden on the respondent to prove that he is not dangerous. Rather, in his view, the proceedings before the Review Board are intended to be non-adversarial. Goudge J.A. held that Part XX.1 of the Criminal Code offended s. 15(1) of the Charter but, because he held that the provisions were saved by s. 1, he agreed with the majority that the appeal should be allowed. Mr. LePage now appeals to this Court.

IV. Issues

[6] The following constitutional questions were stated by the Chief Justice on April 30, 1998:

1. Does s. 672.54 of the Criminal Code, R.S.C., 1985, c. C-46, infringe the rights and freedoms guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms on the ground that it discriminates against people with a mental disorder or mental disability?

2. Does s. 672.54 of the Criminal Code, R.S.C., 1985, c. C-46, infringe the rights and freedoms guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms on the ground that it deprives persons found not criminally responsible on account of mental disorder of their right to liberty and security of the person contrary to the principles of fundamental justice?

3. If the answer to Question 1 or 2 is “yes”, is the infringement demonstrably justified in a free and democratic society as a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?

V. Analysis

[7] This Court’s reasons in the companion appeal of Winko, supra, set out in full the analysis of the constitutionality of the Criminal Code provisions for people found not criminally responsible by reason of mental disorder. In that case, I conclude that, read purposively, the Criminal Code mental disorder provisions, specifically s. 672.54, do not violate s. 7 or s. 15(1) of the Charter and are therefore constitutional.

VI. Conclusion

[8] For the reasons set out in the companion appeal of Winko, I conclude that s. 672.54 does not violate s. 7 or s. 15(1) of the Charter. It is valid legislation, carefully crafted to protect the liberty of the NCR accused to the maximum extent compatible with the person’s current situation and the need to protect public safety.

[9] I would dismiss the appeal and answer the constitutional questions as follows:

1. Does s. 672.54 of the Criminal Code, R.S.C., 1985, c. C-46, infringe the rights and freedoms guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms on the ground that it discriminates against people with a mental disorder or mental disability?

No.

2. Does s. 672.54 of the Criminal Code, R.S.C., 1985, c. C-46, infringe the rights and freedoms guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms on the ground that it deprives persons found not criminally responsible on account of mental disorder of their right to liberty and security of the person contrary to the principles of fundamental justice?

No.

3. If the answer to Question 1 or 2 is “yes”, is the infringement demonstrably justified in a free and democratic society as a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?

The answers to the preceding questions make it unnecessary to answer this question.

The reasons of L’Heureux-Dubé and Gonthier JJ. were delivered by

//Gonthier J.//

GONTHIER J. ‑‑

I. Introduction

[10] This appeal requires us to consider whether Part XX.1 of the Criminal Code, R.S.C., 1985, c. C-46, infringes s. 7 or s. 15 of the Canadian Charter of Rights and Freedoms, and if so, whether it can be upheld under s. 1. The same issue arises in the companion appeals of Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, Orlowski v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 696 (SCC), [1999] 2 S.C.R. 733, and Bese v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 695 (SCC), [1999] 2 S.C.R. 722.

[11] I have read the reasons of McLachlin J. I adopt her statement of the facts as well as her summary of the judgments below. As I explained in my reasons in Winko, I substantially agree with her analysis as well as with her conclusion that the impugned provisions of the Criminal Code violate neither s. 7 nor s. 15 of the Charter, and consequently, that the appeal should be dismissed.

[12] However, I reach that conclusion by adopting a different interpretation of the impugned legislation. In my view, s. 672.54(a) of the Criminal Code clearly requires the court or the Review Board to find that the not criminally responsible accused is “not a significant threat to the safety of the public” (emphasis added) before it directs that he or she be absolutely discharged. For the reasons given in Winko, s. 672.54(a) violates neither s. 7 nor s. 15.

[13] For these reasons, I would dismiss the appeal and adopt McLachlin J.’s answers to the constitutional questions.

Appeal dismissed.

Solicitors for the appellant: Daniel J. Brodsky and Mara B. Greene, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

Solicitors for the intervener the Attorney General of Canada: Kenneth J. Yule and George G. Dolhai, Vancouver.

Solicitor for the intervener the Canadian Mental Health Association: Advocacy Resource Centre for the Handicapped, Toronto.

Solicitors for the intervener the Canadian Police Association: Danson, Recht & Freedman, Toronto.

Solicitors for the intervener Kenneth Samuel Cromie: Burstein & Paine, Toronto.