Court File and Parties

COURT FILE NO.: CR-20-0000034-00AP DATE: 2020-07-28

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN Respondent

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PERSON IN CHARGE, CENTRE FOR ADDICTION AND MENTAL HEALTH Respondent

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ONTARIO REVIEW BOARD Respondent

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BARRIE LYNN Applicant

BEFORE: M. Dambrot J.

COUNSEL: Michael Feindel, for the Crown Rosalea Thompson, for the Applicant

HEARD: May 1, 2020

Reasons for Decision

[1] A person accused of a criminal offence who is found to be unfit to stand trial pursuant to s. 672.22 of the Criminal Code, R.S.C. 1985, c. C-46, remains subject to the criminal process and may still be tried for the offence if they subsequently become fit: s. 672.32(1) of the Code.

[2] When an accused is found to be unfit, the judge who presided over the trial of the issue of fitness may hold a disposition hearing and make a disposition determining whether the accused should be discharged or detained (s. 672.45(1) and s. 672.54 of the Code), but ordinarily the judge does not do so. Instead, a provincial Review Board will typically hold a disposition hearing, as it is required to do within 45 days after the verdict pursuant to s. 672.47 of the Code, and make a disposition with respect to the accused pursuant to s. 672.54 of the Code. Specifically, the Review Board (or a court) may direct the accused be discharged absolutely pursuant to s. 672.54(a) if the conditions are met, discharge the accused subject to such conditions as it considers appropriate pursuant to s. 672.54(b), or direct the accused be detained in custody in a hospital pursuant to s. 672.54(c), again subject to such conditions as it considers appropriate.

[3] In addition, s. 672.851(1) permits a Review Board to make a recommendation to the court to hold an inquiry to determine whether a stay of the proceedings against the accused should be ordered if, in the Board’s opinion, an accused is unfit and not likely to ever become fit, and does not pose a significant threat to the safety of the public. Section 672.851(1)(a), however, limits this power to those cases in which the Review Board has held a hearing to review a disposition pursuant to ss. 672.81 or 672.82; it does not allow the Review Board to do so at a disposition hearing under s. 672.47, when the Review Board is considering the case for the first time.

[4] The Applicant seeks an order pursuant to s. 52 of the Constitution Act, 1982, that s. 672.851(1)(a) of the Criminal Code is inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms, which guarantees to everyone the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice, and therefore is of no force or effect to the extent of the inconsistency. Specifically, he argues that by precluding a recommendation for a stay at an initial hearing before the Board, s. 672.851(1)(a) is under-inclusive and therefore arbitrarily restricts the liberty of permanently unfit accused persons who do not pose a significant threat to the safety of the public by continuing to subject them to criminal proceedings.

[5] Before considering the argument made in this case, it is necessary to examine s. 672.851(1)(a) more closely and place it in its historical context.

Section 672.851 and its Historical Context

[6] Prior to 2004, and regardless of any disposition made with respect to the accused, the Criminal Code continued to subject an unfit accused to the criminal process even where that accused did not pose a significant threat to the safety to the public and there was clear evidence that capacity would never be recovered, so long as the Crown was able to demonstrate that sufficient evidence could be adduced to put the accused on trial. In R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489, the court concluded that in this respect, the Code failed to deal fairly with the permanently unfit accused who was not a threat to public safety, and thereby violated s. 7 of the Charter.

[7] Section 672.851 was enacted in response to Demers. It creates a scheme to provide for the possibility of a stay of proceedings for a permanently unfit accused. The scheme has several phases.

[8] First, as I have noted, s. 672.851(1) authorizes a Review Board to make a recommendation to a court with jurisdiction in respect of the offence charged against the accused to hold an inquiry to determine whether a stay of proceedings should be ordered if, on the basis of relevant information, the Board is of the opinion that the accused remains unfit, is not likely to ever become fit and does not pose a significant threat to the safety of the public. A significant threat to the safety of the public is defined in s. 672.5401 as “a risk of serious physical or psychological harm to members of the public … resulting from conduct that is criminal in nature but not necessarily violent.” [1] However, a Review Board may only make such a recommendation after it has held a hearing under s. 672.81 or s. 672.82 to review any disposition made under ss. 672.54(b) or (c) in respect of the accused. A Board is not authorized to make such a recommendation at an initial s. 672.47(1) disposition hearing.

[9] Section 672.851(3) then permits a court with jurisdiction, as soon as practicable after receiving a recommendation from a provincial Review Board, to hold an inquiry to determine whether a stay of proceedings should be ordered. In addition, s. 672.851(4) permits a court, at any time, of its own motion, and without the necessity of a recommendation from a Board, to conduct an inquiry to determine if it is of the opinion, on the basis of any relevant information, that the accused remains unfit, is unlikely to ever become fit and does not pose a significant threat to the safety of the public. If the court holds an inquiry under either provision, s. 672.851(5) provides that the court shall order an assessment of the accused.

[10] On completion of an inquiry under either s. 672.851(3) or s. 672.851(4), the court may, pursuant to s. 672.851(7), order a stay of proceedings if it is satisfied:

(a) on the basis of clear information, that the accused remains unfit to stand trial and is not likely to ever become fit to stand trial;

(b) that the accused does not pose a significant threat to the safety of the public; and

(c) that a stay is in the interests of the proper administration of justice.

The Circumstances of the Applicant and the Procedural History of this Case

[11] The applicant is a 66-year old man who suffers from dementia and has been diagnosed with aphasia. He was diagnosed at the Centre for Addiction and Mental Health (“CAMH”) as suffering from a “Major Neurocognitive Disorder, Unspecified Etiology, Moderate, With Behavioural Disturbance.” The applicant has been married to his wife for 33 years. He has no children. He holds a certificate in civil engineering and worked for many years as an engineer in England and in Canada. He is now retired and relies on his pensions for income. Prior to his arrest, the applicant was residing with his spouse in an apartment building in Toronto.

[12] On October 16, 2019, the property manager at the Lynns’ apartment building observed the applicant and his wife in the lobby area and noted serious injuries to Mrs. Lynn’s head and face. Police and paramedics were called to the scene. According to the police synopsis, Mrs. Lynn refused to say what happened, but she repeatedly declared “Barrie would not do this to me, that’s not my husband,” while pointing to her husband. She later said, “He didn’t mean it.” The officers observed that a small chunk of Mrs. Lynn’s bottom lip was missing and that she had a large scrape on her forehead. Mrs. Lynn was transported to hospital and the applicant was arrested, charged with assault causing bodily harm and taken into police custody.

[13] The applicant appeared in the Ontario Court of Justice on October 17, 2019 and was remanded to October 18. On that day, he was found unfit to stand trial. The presiding judge did not hold a disposition hearing pursuant to s. 672.45 of the Code, made no disposition pursuant to s. 672.54 of the Code and, pursuant to s. 672.46(2) of the Code, ordered the applicant detained at CAMH pending his initial hearing before the Ontario Review Board (the “ORB”). He is currently detained at the Forensic Assessment and Triage Unit at the CAMH.

[14] Before I embark on a summary of the proceedings before the ORB, I pause to make this brief comment. The applicant filed the Board’s disposition Order dated February 20, 2020 and purported to provide an account of the ORB proceedings by filing an affidavit of one Emily Andrechuk. Unfortunately, the affidavit does not recount who Ms. Andrechuk is, whether and to what extent her information is based on her own knowledge or on information and belief, whether or not she was present at the hearing or what her sources of information are if she was not. As a result, I can place no reliance on her affidavit. Fortunately, the Crown included in its responding record the Board’s Disposition Memorandum of December 13, 2019 outlining the Board’s reasons for adjourning the matter to February 12, 2020, and the Board’s Reasons for Disposition dated February 26, 2020. I do take note of the fact that the Reasons had not been released when the applicant filed his record, but the applicant has not filed any supplementary material. My recitation of the facts with respect to the Board’s proceedings come exclusively from the Disposition Order, the Board’s Disposition Memorandum of December 13, 2019 and the Board’s Reasons for Disposition dated February 26, 2020.

[15] The ORB convened an initial hearing at CAMH on December 13, 2019. Counsel for the applicant requested an adjournment because he had not received the hospital report until December 12 and was not prepared to proceed. However, he did indicate that he would be “contesting the issue of significant threat.” Counsel for the Hospital and the Crown were prepared to proceed but did not oppose the adjournment. The adjournment was granted and the matter was scheduled to be heard on February 12, 2020.

[16] On February 5, 2020, the applicant filed his Notice of Application with this court to challenge the constitutionality of section 672.851(1)(a); however, the initial hearing before the ORB proceeded as scheduled on February 12, 2020.

[17] At the hearing, counsel for the applicant advised the Board that he had brought a “motion” in this court seeking an order that a reference to s. 672.47 of the Criminal Code be read into s. 672.851(1)(a) so as to permit a Board at an initial hearing to make a recommendation to a court of competent jurisdiction to conduct a stay of proceedings inquiry. He also asked the Board to order that it did have the jurisdiction to make such a recommendation. The Board ruled that it did not have statutory authority to make a recommendation to a court to hold a stay inquiry.

[18] After reviewing the very detailed Initial Hospital Report to the Ontario Review Board dated December 9, 2019 (the “Hospital Report”) and hearing the viva voce evidence of Dr. Ian G. Swayze, who had been Mr. Lynn’s in-patient attending psychiatrist at CAMH since the applicant was ordered detained at CAMH on October 18, 2019, the Board found that, having regard to the severity of the applicant’s neurocognitive disorder, he remained unfit to stand trial. In addition, the Board found that the evidence was clear that Mr. Lynn continued to require an environment with a high degree of supervision and perimeter security, but that he could be safely managed on either a Secure Forensic unit or a Psychogeriatric unit at CAMH, with the ultimate objective of being transferred to a supervised, high-support, long-term care facility in the community.

[19] As a result, the Board made the following disposition. It ordered the applicant detained at the secure forensic unit at CAMH subject to a hybrid detention order, with privileges up to living in the community in supervised accommodation approved by the person in charge, and that would accommodate the possibility that he might be transferred to a general forensic unit if he has a positive response to pharmacological and/or behavioural interventions in the upcoming reporting year. In reaching its decision, the Board considered public safety, Mr. Lynn’s mental condition, his reintegration into society and his other needs.

[20] In the course of the hearing, counsel for the applicant asked the Board to order that a “discretionary hearing”, by which he meant an early review hearing pursuant to s. 672.82(1), be held within two months following the initial hearing. Counsel made this request because he wanted to argue the issue of significant threat and the appropriateness of a recommendation for a stay inquiry at an early opportunity. The Board declined to make such an order. Notably, the Board found that the evidence adduced at the hearing did not warrant that a discretionary hearing be ordered. Since the evidence before the Board indicated that Mr. Lynn’s cognitive difficulties were unlikely to improve and that he was likely permanently unfit, the Board could only have meant that the Board was of the view that the evidence it heard concerning the threat the applicant posed to public safety did not warrant an early consideration of a stay inquiry recommendation.

[21] The evidence adduced at the hearing supports this conclusion. In the Hospital Report, it is noted that while there has been no “frank violence”, Mr. Lynn had attempted to strike one particular patient on several occasions, with staff successfully intervening. Dr. Swayze added that on a date subsequent to the preparation of the report, Mr. Lynn was involved in an incident where he apparently pushed a co-patient. He had been having conflicted interactions with that particular co-patient, as well as others. He required seclusion to settle.

[22] In the Hospital Report, it is noted that the applicant was scored on the HCR-20 Version 3 Structured Guide for the Assessment of Violence Risk. His HCR-20 Version 3 overall profile suggested a moderate risk potential. In addition, he has several salient clinical risk factors. Taken in totality, the clinical team was of the opinion that Mr. Lynn represents a significant threat to the safety of the public as defined in s. 672.5401 of the Code.

The Issues

[23] The following issues are raised in this application:

1. Should the court hear this application despite the fact that it is moot, or because an appeal to the Court of Appeal may be available?
2. Are the s. 7 rights of the applicant engaged by the limitation in s. 672.851(1)(a) of the Code?
3. Does the limitation in s. 672.851(1)(a) of the Code violate s. 7 of the Charter by creating an arbitrary result?
4. If so, is the limitation in s. 672.851(1)(a) of the Code saved by s. 1 of the Charter?

[24] I will address each of these issues in turn in the course of my reasons.

Mootness and the Availability of an Appeal

[25] There can be no doubt that the issues raised by the applicant are moot. The Board has held an initial hearing under s. 672.47 of the Code and made a disposition order with respect to the applicant pursuant to s. 672.47(1) of the Code. This application is neither an appeal from nor a review of the decision of the Board, and neither has otherwise been brought.

[26] However, Crown counsel fairly concedes that the issue before me is likely “capable of repetition, yet evasive of review”, and on that ground, is content that the application be heard: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 15. I do not quarrel with this concession, and I will not decline to consider this application on the grounds of mootness.

[27] Also of concern to me, although not raised by any of the parties, was the existence of s. 672.72 of the Code, which provides for an appeal to the Court of Appeal from a disposition or placement decision made by a Review Board. Ordinarily, this court will decline to exercise its jurisdiction to consider granting relief to an applicant who has a statutory right of appeal in the same matter upon which the issue in question can be raised. However, I am doubtful that the refusal to make a recommendation, either on jurisdictional grounds or on the merits, is a matter that can be raised on an appeal under s. 672.72. While a recommendation can be made by the Review Board after it has held a hearing to review a disposition, nothing in the Code suggests that the making or refusal to make a recommendation forms a part of the disposition. As a result, I will not decline to consider this application on the basis that an appeal is available.

Section 7 of the Charter

[28] Section 7 of the Charter guarantees to everyone “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.” Legislation that limits the right to life, liberty and security of the person will attract s. 7 scrutiny. It will, however, survive that scrutiny and avoid judicial nullification unless it is shown to be contrary to the principles of fundamental justice. As the majority put it in Canada (Attorney General) v. Bedford, 2012 ONCA 186, 109 O.R. (3d) 1, at para. 89, rev’d on other grounds, 2013 SCC 72, [2013] 3 S.C.R. 1101:

An applicant alleging a breach of s. 7 must demonstrate on the balance of probabilities that: (1) 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 (2) that the interference or limitation is not in accordance with the principles of fundamental justice.

[29] The Crown argues that the applicant falls short on both issues. I begin my analysis by considering whether the applicant has established that by failing to permit a Review Board to make a recommendation to the court to hold an inquiry to determine whether a stay of proceedings should be ordered at an initial disposition hearing, s. 672.851(1)(a) of the Code interferes with or limits the applicant’s right to life, liberty or security of the person guaranteed by s. 7 of the Charter.

Does the Challenged Legislation Interfere with or Limit the Applicant’s Right to Life, Liberty or Security of the Person?

[30] Part XX.1 of the Criminal Code, entitled Mental Disorder, creates a comprehensive scheme governing persons accused of crime who are found unfit to stand trial or not criminally responsible on account of mental disorder. The provisions of Part XX.1 permit the state, through a court or Review Board, to deprive such persons of their liberty and security of the person by placing them in detention, or by imposing certain conditions on their liberty. In the case of an unfit accused, the deprivation arises from a disposition made by the Review Board or a court. As a result, Part XX.1 engages the s. 7 rights of unfit persons: see Demers, at para. 30.

[31] However, this cannot mean that every procedural provision in Part XX.1, when challenged in isolation, must be seen to engage s. 7 rights. The only challenge here is to a narrow aspect of s. 672.851(1). As I have explained, that provision authorizes the Board, after conducting a review of a disposition, to recommend a stay inquiry to the court that has jurisdiction. The complaint is that the section violates s. 7 because it does not also permit the Board to make a recommendation at an initial disposition hearing. As a result, in my view the appropriate question for me to answer is: does s. 672.851(1)(a) limit the applicant’s right to liberty or security of the person?

[32] At first blush, a challenge to s. 672.851(1)(a) seems counter-intuitive. Far from limiting the liberty or security of the person of an unfit accused, the provision is part of the avenue enacted after Demers to offer an opportunity for liberty to certain unfit accused. Clearly the failure of s. 672.851(1)(a) of the Code to permit a Review Board to make a recommendation to the court to hold an inquiry to determine whether a stay of proceedings should be ordered at an initial disposition hearing does not directly limit the applicant’s right to liberty. First, of course, as counsel for the Crown argues, the impugned legislation is not the source of the applicant’s loss of liberty. As with most accused persons who are the subject of an initial hearing under s. 672.47 of the Code and then ordered to be detained in a hospital by the Board, he was initially deprived of his liberty by order of the court that found him unfit, and was subsequently deprived of his liberty by the disposition of the Board with the right to appeal that disposition to the Court of Appeal. His right to liberty and security of the person is in no sense directly limited by the limitation in s. 672.851(1)(a) of the Code. A recommendation is nothing more than advice to the court that the Board is of the view that the court should conduct a stay inquiry. The court is free to reject the advice. If it takes the advice, it is still free to refuse to order a stay. A recommendation does not set free a detained accused.

[33] But that is not a complete answer to the question. Section 672.851(1)(a) will also engage s. 7 rights if it negatively impacts the liberty or security of the person of an unfit person. However, there must be a sufficient causal connection between the impugned law and prejudice to the liberty of the applicant before s. 7 is engaged. The sufficient causal connection standard was explained by McLachlin C.J. in Bedford, at para 76:

A sufficient causal connection standard does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance of probabilities (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 21). A sufficient causal connection is sensitive to the context of the particular case and insists on a real, as opposed to a speculative, link. Understood in this way, a sufficient causal connection standard is consistent with the substance of the standard that the Court of Appeal applied in this case. While I do not agree with the Court of Appeal that causation is not the appropriate lens for examining whether legislation – as opposed to the conduct of state actors – engages s. 7 security interests, its “practical and pragmatic” inquiry (para. 108) tracks the process followed in cases such as Blencoe and Khadr.

[34] In applying this test, I begin by noting that s. 672.851 does not empower the Board to order a stay of proceedings. If it did, then clearly the omission of that power at an initial hearing would negatively impact the liberty of an unfit person and engage s. 7. Section 672.851 does not even empower the Board to recommend a stay to the court; it only empowers the Board to recommend that the court hold an inquiry to determine whether a stay should be ordered, further diminishing its impact on liberty. I note next that a recommendation by the Board pursuant to s. 672.851(1) is neither a trigger for a judicial consideration of a stay nor a prerequisite for a judicial consideration of a stay. First, s. 672.851(3) provides that upon receiving a recommendation, a court may hold an inquiry. It is a matter for the court’s discretion. Second, s. 672.851(4) permits a court, of its own motion, to conduct a stay inquiry, without the need for a recommendation. I note that in R. v. Kearly, [2005] O.J. No. 5394 (C.J.), Schneider J. expressed the view that “if the court is permitted to commence a hearing of its own motion, or one of the Review Board, a necessary inference can be drawn that the court may also commence a hearing upon the application of a party …” I have no doubt that he is correct.

[35] Finally, I note that the failure of s. 672.851(1)(a) to permit a recommendation to be made at an initial disposition hearing is of virtually no significance. The section permits a recommendation to be made if the Board has held a review under s. 672.81, which must take place not later than 12 months after a disposition and every 12 months after that for as long as the disposition remains in force. While this might require an accused who meets the requirements for a recommendation to wait for a considerable period of time before he or she is able to secure one, the section also permits a recommendation to be made if the Board has held a review under s. 672.82, which may be held at any time, of the Board’s own motion or at the request of the accused or any other party. This provision effectively eliminates any prejudice to an unfit person as a result of the asserted “under-inclusiveness” of s. 672.851(1)(a).

[36] Indeed, in this very matter, as I have indicated, in the course of his initial disposition hearing, the applicant asked the Board to order that an early review hearing pursuant to s. 672.82(1) be held within two months following the initial hearing. While the request was denied, there was no suggestion that the Board could not have made such an order. The request was denied because the Board found that the evidence adduced at the hearing did not warrant that a discretionary hearing be ordered. In other words, the evidence it heard, concerning among other things the threat the applicant posed to public safety, did not warrant an early consideration of a stay inquiry recommendation. As I have said, the evidence adduced at the hearing supports the Board’s conclusion. The clinical team was of the opinion, on the basis of the totality of the evidence, that Mr. Lynn represents a significant threat to the safety of the public as defined in s. 672.5401 of the Code.

[37] The applicant nevertheless argues that even if s. 672.82 overcomes the prejudice flowing from the alleged under-inclusiveness of s. 672.851(1)(a) in respect of timing, other forms of prejudice remain. In particular, he notes that s. 672.121 authorizes a Board to order an assessment of an unfit accused if it has reasonable grounds to believe that such evidence is necessary to make a disposition under s. 672.851. The problem, he argues, is that such an order cannot be made for the purpose of an initial disposition hearing. I confess that this argument is lost on me.

[38] Section 672.82 gives the Board the discretion to conduct an early review at any time of its own motion or at the request of party. There is no precondition to the exercise of this discretion. If there is some basis for conducting an early review, I find it hard to imagine that it would not be found in the record of the disposition hearing. After all, the relevant hospital report will be before the Board, and s. 672.5(11) gives the accused the right to adduce evidence, make oral and written submissions, call and cross-examine witnesses and, on application, cross-examine the maker of the hospital report. The record here is replete with information about the applicant’s permanent fitness and the danger he poses to the public. In addition, if a record of the disposition really was insufficient, the accused could apply to the court to make an assessment order pursuant to s. 672.12 of the Code. The court has jurisdiction to make such an order “at any stage of proceedings against the accused”. Where it is necessary in order to assess the accused, the court can order an accused to be detained pursuant to s. 676.16(1). Finally, once the Board embarks on an early review, it is then authorized to make an order for an assessment pursuant to s. 672.121 if it is necessary in order to determine whether or not a recommendation should be made.

[39] Finally, I note again that the unfit accused may apply to a court for a stay at any time pursuant to s. 672.851(4) without a recommendation from the Board if the court is of the opinion, based on relevant evidence, that the accused is permanently unfit and does not pose a significant threat to the public. Once again, if necessary, the accused could ask the court to make an assessment order pursuant to s. 672.12 to support his application.

[40] Having regard to all of the foregoing, I am of the view that there is not a sufficient causal connection between the impugned law and prejudice to the liberty or security of the person of an accused to engage the accused’s s. 7 rights, and I would dismiss this application on that basis alone. However, in case I am wrong, I will go on to consider the second leg of the test for an inquiry into violation of s. 7: is the interference or limitation in accordance with the principles of fundamental justice?

Does the Limitation in s. 672.851(1)(a) of the Code Violate Section 7 of the Charter by Creating an Arbitrary Result?

[41] Once a court concludes that an impugned law deprives a class of persons of the right to life, liberty or security of the person, thereby engaging s. 7 of the Charter, the remaining step in the s. 7 analysis is to determine whether this deprivation is in accordance with the principles of fundamental justice. If so, s. 7 is not breached. The principles of fundamental justice set out the minimum requirements for a law that negatively impacts on a person’s life, liberty, or security of the person. The principles of fundamental justice are an attempt to capture the basic values underpinning our constitutional order. Section 7 analysis is concerned with capturing inherently bad laws: that is, laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values: see Bedford (SCC), at paras. 94-96.

[42] One such principle of fundamental justice is overbreadth. It is a well-established principle of fundamental justice that criminal legislation must not be overbroad: see Demers, at para. 37. Another principle of fundamental justice is arbitrariness. The concept of arbitrariness is used to describe the situation where there is no connection between the effect and the object, or purpose, of the law: see Bedford (SCC) at paras. 98-100. In this case the applicant says that the provisions in question

… are so underinclusive as to render an arbitrary result: for an unspecified period of time, persons found permanently unfit and who may otherwise qualify for recommendation of a stay of proceedings, are kept within the jurisdiction of the court and subjected to a criminal proceedings to which they will never be able to answer. The continued subjection of permanently unfit accused to criminal proceedings bears no connection to the law’s purpose: the Applicant cannot participate in the proceedings and the dignity of the trial process itself is offended.

[43] In assessing this argument, it is necessary to start with Demers. In Demers, at para. 55, the Supreme Court concluded that the fitness regime in force at the time was overbroad because it continually subjected unfit accused who did not pose a significant threat to the safety of the public to the criminal process where there was clear evidence that capacity would never be recovered. The current fitness regime has overcome this infirmity, and now provides detailed provisions for the availability of a stay of proceedings for the permanently unfit accused.

[44] It is important next to recall how the goal of making a stay available to a permanently unfit accused was accomplished. The core provision is s. 672.851(7) which permits the court, after completing an inquiry under s. 672.85, to order a stay of proceedings if it is satisfied:

(a) on the basis of clear information, that the accused remains unfit to stand trial and is not likely to ever become fit to stand trial;

(b) that the accused does not pose a significant threat to the safety of the public; and

(c) that a stay is in the interests of the proper administration of justice.

[45] The third prerequisite, that a stay must be in the interests of the administration of justice, finds constitutional support at para. 64 of Demers, where the court stated:

… it will also be appropriate at this stage “to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits”. This balancing recognizes that the administration of justice is best served by staying the proceedings where the affront to fairness and decency is disproportionate to the societal interest in the subjection of the accused to criminal proceedings: R. v. Conway, 1989 SCC 66, [1989] 1 S.C.R. 1659, at p. 1667.

[46] The complaint of the applicant really comes down to this. After a review of a disposition as of right pursuant to s. 672.81 of the Code, which must occur no later than 12 months after a disposition is made, an unfit accused may, as of right, ask a Review Board to exercise its discretion to hold an inquiry to determine whether a stay should be ordered, and if so, make a recommendation to a court to inquire into the matter. If a recommendation is made, the court then has a discretion to conduct such an inquiry. But after an initial disposition is made, and before the 12-month period has run, the Board may only exercise its discretion to conduct a stay inquiry if it first exercises its discretion to conduct an early, discretionary review of the disposition pursuant to s. 672.82. In other words, in the first scenario, the accused is actually before the Board when he or she asks the Board to conduct a stay inquiry. In the second scenario, the accused must first ask the Board to conduct a review, and only then, if the Board agrees to conduct a review, to conduct a stay inquiry.

[47] It is hard to deny that this scheme is a bit convoluted. But in the end, in order to secure a stay inquiry before a judge based on the recommendation of the Board in the first year after a disposition, the accused must obtain a favourable exercise of three discretions, two by the Board and one by the court; after one year, it becomes only two discretions, one by the Board, and one by the court.

[48] In other words, there is an extra obstacle placed before an unfit accused seeking a stay based on a recommendation of the Board for the first year after a disposition. I am extremely doubtful that the extra obstacle is very onerous. If an unfit accused presents an arguable case for a stay, I find it unlikely that the Board would refuse to exercise both the discretion to conduct a review and the discretion to conduct a stay inquiry. But be that as it may, the real question for me is this: is the creation of this extra obstacle arbitrary? In other words, am I satisfied that there is no connection between the effect of the law (the extra obstacle) and the purpose of the law? This, of course, requires me to identify the purpose of the law. In other words, I must identify the general purpose of s. 672.851(1)(a), and Parliament’s particular purpose for not giving a Review Board authority in s. 672.851(1)(a) of the Code to make a recommendation to the court to hold a stay inquiry at an initial disposition hearing.

[49] Cromwell J. explained how courts go about identifying legislative purpose in R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, a case in which certain provisions of the National Defence Act, R.S.C. 1985, c. N-5, which permits nearly every federal offence to be prosecuted within the military justice system, was challenged under s. 7 of the Charter on the basis that it was overbroad. He stated, at para. 31:

Courts have used many sources to determine legislative purpose: see R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at §§ 9.41-9.66. In some cases, legislation contains explicit statements of purpose, but there is no such statement here. Courts also look at the text, context and scheme of the legislation in order to infer its purpose. For instance, in Heywood, the Court concluded that the purpose of a vagrancy law that prohibited convicted offenders from loitering in public parks, which was to protect children from becoming victims of sexual offences, was “apparent from the places to which the prohibition of loitering applies”: p. 786; see also R. v. Garofoli, 1990 SCC 52, [1990] 2 S.C.R. 1421, at pp. 1470-71. In addition, courts may also resort to extrinsic evidence such as legislative history and evolution. But as Prof. Sullivan wisely observes, legislative statements of purpose may be vague and incomplete and inferences of legislative purpose may be subjective and prone to error: § 9.90.

[50] In this case, there is no statement of the purpose for the exclusion of an initial disposition hearing from s. 672.851(2) in the legislation itself, in Hansard or in any extrinsic evidence that I have been made aware of. As a result, I must look at the text, context and scheme of the legislation in order to infer its purpose.

[51] Counsel for the applicant identifies the purpose of the legislation as ensuring that the process of determining guilt is as accurate as possible, that the accused can participate in the proceedings and that the dignity of the trial process is maintained. This statement of the purpose of the legislation suffers from two flaws. First, it is only a part of the purpose of the fitness scheme. And second, it is too broad. It is not the purpose of the provision under scrutiny. I will explain each of these points in turn.

[52] With respect to the first point, it is beyond dispute that the scheme reflects both the public’s needs (protection from dangerous individuals and bringing to trial an individual accused of a serious crime) and the needs of the accused (right to a fair trial, assessment and treatment of persons with mental disorder). The applicant’s formulation substantially omits the public side of the equation.

[53] Parliament enacted the fitness regime in Part XX.1 of the Criminal Code in 1991. In Winko v. British Columbia (Forensic Psychiatric Institute), 1999 SCC 694, [1999] 2 S.C.R. 625, the Supreme Court dismissed a constitutional challenge to s. 672.54 of the Code. The court concluded that s. 672.54 protects the liberty, security of the person and equality interests of those accused who are not criminally responsible. In the course of its reasons, at para. 20, the court made reference to the twin goals of the regime: fair treatment of the mentally ill offender and public safety.

[54] In Demers, the court applied the same twin goals to the fitness regime in part XX.1. The court stated, at para. 18, “The pith and substance of Part XX.1 Cr. C. is revealed by its twin goals of protecting the public and treating the mentally ill accused fairly and appropriately.” The court elaborated at para. 25:

As mentioned above, Part XX.1 Cr. C. was enacted as a balanced response to this Court’s decision in Swain [R. v. Swain, 1991 SCC 104, [1991] 1 S.C.R. 933]. This new scheme reflects both the public’s needs (protection from dangerous individuals and bringing to trial an individual accused of a serious crime) and the needs of the accused (right to a fair trial, assessment and treatment of persons with mental disorders) ...

[55] By omitting the second goal of the fitness regime, particularly the public’s need for protection from dangerous individuals, the applicant makes it inevitable that there can be no connection between the effect of the law and the purpose of the law. Including the public interest alters the debate.

[56] But more importantly, it is not the purpose of the overall fitness regime that must be measured against the effect of the impugned provision. It would be extremely heavy lifting if the effect of each provision of a legislative regime had to bear, on its own, the full burden of vindicating the purpose of the scheme. Instead, there need only be a connection between the effect of the impugned provision and the object of that specific provision for the provision to escape the specific flaw of arbitrariness.

[57] This very point was made in Moriarity, albeit in the context of overbreadth analysis. Cromwell J. stated, at para. 24:

With respect to both purpose and effects, the focus is on the challenged provision, of course understood within the context of the legislative scheme of which it forms a part. (In my reasons, I use the words “objective”, “ends” and “purpose” interchangeably.) [Emphasis added.]

[58] Cromwell J. further discussed the appropriate level of generality in a statement of purpose at paras. 28-29. He stated:

The appropriate level of generality for the articulation of the law’s purpose is also critically important. If the purpose is articulated in too general terms, it will provide no meaningful check on the means employed to achieve it: almost any challenged provision will likely be rationally connected to a very broadly stated purpose (see, e.g., Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 77). On the other hand, if the identified purpose is articulated in too specific terms, then the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them. The appropriate level of generality, therefore, resides between the statement of an “animating social value” – which is too general – and a narrow articulation, which can include a virtual repetition of the challenged provision, divorced from its context – which risks being too specific: Carter, at para. 76. An unduly broad statement of purpose will almost always lead to a finding that the provision is not overbroad, while an unduly narrow statement of purpose will almost always lead to a finding of overbreadth.

The statement of purpose should generally be both precise and succinct. So, for example, in R. v. Heywood, 1994 SCC 34, [1994] 3 S.C.R. 761, the law's purpose was to protect children from becoming victims of sexual offences. In R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, the purpose of the scheme was to prosecute and prevent terrorism. In Bedford, the purpose of the living on the avails of prostitution offence was to target pimps and the parasitic, exploitative conduct in which they engage. In Carter, the objective of the ban on assisted suicide was to prevent vulnerable persons from being induced to commit suicide at a time of weakness. These are all examples of precise and succinct articulations of the law’s objective.

[59] I note that while in overbreadth analysis, as Cromwell J. stated, an unduly broad statement of purpose will almost always lead to a finding that the provision is not overbroad, while an unduly narrow statement of purpose will almost always lead to a finding of overbreadth, this may play out differently in arbitrariness analysis. An unduly broad statement of purpose may lead to a finding of arbitrariness, while an unduly narrow statement may not. Nonetheless I take guidance from the approach to identifying the purpose of an impugned provision in Moriarity.

[60] Finally, I note that in Moriarity, at para. 30, Cromwell J. made clear that in analyzing the relationship between a law’s purpose and its effect, the analysis does not evaluate the appropriateness of the objective. This point was expanded upon in R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at paras. 24-49, where the court reaffirmed the approach Cromwell J. took to discerning the purpose of legislation in s. 7 analysis. The court stated, at para. 29:

Fourth, the analysis is not concerned with the appropriateness of the legislative purpose. The court must take the legislative objective "at face value" and assume that it is appropriate and lawful: Moriarity, at para. 30. The appropriateness of a legislative objective may be relevant to its constitutionality under other Charter provisions. But it has no place in the s. 7 analysis of overbreadth.

[61] I turn next to the task of identifying the purpose of the impugned provision. To do so, I must identify the general purpose of s. 672.851(1), and Parliament’s particular purpose for not giving a Review Board authority in s. 672.851(1)(a) of the Code to make a recommendation to the court to hold a stay inquiry at an initial disposition hearing.

[62] The purpose of s. 672.851(1) is no mystery. It is a mechanism to assist in bringing to the court’s attention cases of unfit accused who might be candidates for a stay. The more difficult task is identifying Parliament’s purpose for not giving a Review Board authority in s. 672.851(1)(a) of the Code to make a recommendation to the court to hold a stay inquiry at an initial disposition hearing.

[63] Counsel for the applicant has drawn my attention to the decision of the Board in Birdsell (Re), [2013] O.R.B.D. No. 1352. In that case, the Board found that the accused was likely permanently unfit and was not a significant threat but acknowledged that it could not make a recommendation because of the language of s. 672.851(1)(a). Instead, the Board ordered that another hearing be held as soon as practicable to permit a recommendation to be made in short order. However the Board also chose to comment on the fact that it could not make an immediate recommendation, stating, “The Board finds this an unfortunate circumstance because Ms. Birdsell in our opinion does not represent a significant threat to the safety of the public and this “glitch” in the legislation appears to have overlooked this possible outcome at an initial hearing.” With respect to the Board, I do not share the view that there is a “glitch” in the legislation. I agree with Crown counsel when he says, “… the sheer fact that Parliament introduced a section to limit when a review board could inquire into the issue of permanent unfitness suggests that Parliament turned its mind to this issue and that the limitation it imposed has a purpose rather than simply being a drafting ‘glitch.’”

[64] Another panel of the Board took a different view of the limitation on making a recommendation at an initial hearing. In Lamore (Re), [2020] O.R.B.D. No. 241, the Board stated, at para. 57:

It appears to this panel that the rationale for the timing of a stay of proceeding excluding the ability to do so on an initial hearing is that it is simply too soon for a panel of the Review Board to determine whether the patient “is not likely to ever become fit to stand trial”.

[65] In my view, this explanation for the limitation in the section comes close to the mark.

[66] As I said earlier, the effect of the limitation is simply this: in order to secure a stay inquiry before a judge based on the recommendation of the Board in the first year after a disposition, the accused must obtain a favourable exercise of three discretions, two by the Board and one by the court; after one year, only two discretions are required, one by the Board, and one by the court. In other words, there is an extra obstacle placed before an unfit accused seeking a stay based on a Board recommendation for the first year after a disposition: the Board must exercise its discretion to hold an early review of its disposition. What was Parliament’s purpose in imposing this extra obstacle?

[67] As I have noted, in order to infer Parliament’s purpose in imposing this extra obstacle, I must look at the text, context and scheme of the challenged provision, specifically the challenged limitation in s. 672.851(1). As was pointed out in Safarzadeh-Markhali, at para. 33, these considerations provide the contextual matrix in which the challenged provision is embedded. In my view, it is not difficult to discern its purpose.

[68] I start with a reminder that while a Board recommendation can be made if it is of the opinion that: (1) that the accused is likely permanently unfit; and (2) the accused does not pose a significant threat to the safety of the public, a court may only grant a stay if it is satisfied: (1) on the basis of clear evidence, that the accused is not likely to ever become fit; (2) that the accused does not pose a significant threat to the safety of the public; and (3) the stay is in the interests of the proper administration of justice.

[69] The addition prerequisite to the stay – that it be in the interests of the administration of justice – by virtue of s. 672.851(8), requires consideration of the following factors:

(a) the nature and seriousness of the alleged offence;

(b) the salutary and deleterious effects of the order for a stay of proceedings, including any effect on public confidence in the administration of justice;

(c) the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 672.33 to decide whether sufficient evidence can be adduced to put the accused on trial; and

(d) any other factor that the court considers relevant.

[70] The importance Parliament placed on public confidence in the administration of justice and the time that has elapsed since the commission of the offence, informs the rationale for precluding an early stay recommendation on the very first occasion that the accused is before the Board, which occurs within 45 days of the verdict of unfitness. Simply stated, the purpose is to ensure that public safety is adequately considered by the Board, and to enhance public confidence in the administration of justice.

[71] If that is the purpose of the limitation, then there is an obvious connection between that purpose and the effect of the limitation. Both public safety and public confidence in the administration of justice will be enhanced by the knowledge that the Board has made a recommendation only after a second look at the accused. As the board said in Lamore, it is generally too soon for a panel of the Review Board to determine whether the patient “is not likely to ever become fit to stand trial”. I would add that it is also generally too soon for a panel of the Review Board to determine that the accused does not pose a significant threat to the safety of the public.

[72] In his factum, Crown counsel made several salient points that reinforce this view of the connection between the purpose and the effect of the limitation. He noted that time can be a critical component in determining the “permanency” of the clinical condition rendering the accused unfit and in informing the level of confidence with which a clinician can make such a prognosis. He further noted that even in the few cases where the clinical evidence is unequivocal respecting the permanence of unfitness – as can often be the case with severe neurocognitive conditions – such cases frequently require time to assess the kind of supports that will be needed to address the risk that likely gave rise to the arrest and the laying of a criminal charge, as in this case.

[73] It must always be remembered when assessing the arbitrariness of the limitation, although this point might be more relevant to a claim of overbreadth, that the obstacle is a small one. In the small number of cases where time is not needed to reach a conclusion about a stay, the Board could order a review of its disposition within days, or the accused could make an early application directly to the court.

[74] Of course, one might take the view that the limitation is unnecessary, and the Board could easily sort out deserving and undeserving cases without it. But that does not undermine the existence of the necessary connection between the purpose of the limitation and the effect. It does not speak to arbitrariness. In this regard, I am mindful of the decision of Trotter J., as he then was, in R. v. Pertroniuk, 2014 ONSC 6951, 322 C.R.R. (2d) 276.

[75] In that case, which bears some similarities to this one, Petroniuk argued that s. 672.56 of the Code violated s. 7 of the Charter because s. 672.56(2) provided that only a person in charge of the hospital could trigger a mandatory review before the Board. She argued that the words “and the accused” should be read into the provision, allowing the accused person to also trigger the procedure. She contended that because she was not entitled to have the Board automatically review significant restrictions on her liberty, the process is unfair. In dismissing the application, Trotter J. said the following at paras. 14-16:

Ms. Petroniuk contends that because she is not entitled to have the ORB automatically review significant restrictions on her liberty, the process is unfair. This is compounded by the appearance of bias inherent in vesting the person in authority with this power.

The principles of fundamental justice do not entitle a Charter applicant to a particular type of process or the ideal procedure. Instead, they require a fair process that takes into account the nature of the proceedings and the liberty interests at stake: see R. v. Rodgers, 2006 SCC 15, 207 C.C.C. (3d) 225 (S.C.C.), at pp. 253-254 and Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 20. What might be a fair process in one context may be found wanting in another: see Stewart, Fundamental Justice, supra, at pp. 224-226.

In assessing whether s. 672.56 comports with the principles of fundamental justice, the provision must be considered in the context of Part XX.1 as a whole, and against the broader legal framework in which the Review Boards operate.

[76] At paras. 23-27, Trotter J. pointed out that s. 672.82 vests a discretionary review power in Review Boards. While underscoring that such a review is discretionary, he nevertheless concluded that it was a consideration that weighed in favour of his determination that the procedure in s. 672.56 is a fair one.

[77] I find considerable support in Pertroniuk for my conclusion that the limitation in s. 672.851(1)(a) is not arbitrary, and not inconsistent with s. 7 of the Charter.

Section 1 of the Charter

[78] In view of my conclusions that the limitation in s. 672.851(1)(a) neither limits the liberty or security of the person of an unfit accused nor creates an arbitrary result, and that s. 7 of the Charter is not infringed, it is unnecessary for me to address s. 1.

Disposition

[79] The application is dismissed.

M. DAMBROT J.

RELEASED: July 28, 2020

COURT FILE NO.: CR-20-0000034-00AP DATE: 2020-07-28

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N : HER MAJESTY THE QUEEN Respondent – and – PERSON IN CHARGE, CENTRE FOR ADDICTION AND MENTAL HEALTH Respondent - and - ONTARIO REVIEW BOARD Applicant - and - BARRIE LYNN Applicant REASONS FOR DECISION DAMBROT J.

RELEASED: July 28, 2020

[1] While the definition in s. 672.5401 is specifically applicable only to s. 672.54, I can imagine no reason why the definition would be different when the identical phrase “a significant threat to the safety of the public” is used in s. 672.851(1), and I am aware of no authority to the contrary.