Orlowski v. British Columbia (Forensic Psychiatric Institute)

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 for crimes (“NCR”) by reason of mental disorder. The same issue is raised in the companion appeals of Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, Bese v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 722, and R. v. LePage, [1999] 2 S.C.R. 744. I conclude that, read purposively, the provisions of the Criminal Code , specifically s. 672.54, are constitutional and would dismiss the appeal.

Mr. Orlowski suffers from a paranoid schizophrenic disorder and delusions of persecution. He became subject to the Criminal Code ’s mental disorder provisions as a result of an incident on October 8, 1989, in Hedley, B.C. On that day, an RCMP officer observed Mr. Orlowski talking to himself and discharging a rifle repeatedly into a house and into the ground. When the officer told Mr. Orlowski to drop the weapon, Mr. Orlowski surrendered immediately. Throughout the incident, Mr. Orlowski appeared to be very frightened. He was foaming at the mouth, his eyes were rolled back in his head, and he was shouting statements such as “they’re after me”, “I called the Pentagon”, “I talked to the U.S. Army”, and “they’ll blow us up”. Upon searching Mr. Orlowski, the officer found two Bic lighters rigged with fuses and wicks. Mr. Orlowski was charged with possession of an explosive substance, pointing a firearm, possession of a weapon for a purpose dangerous to the public peace, uttering a threat, and mischief. On March 22, 1990, he was found not guilty by reason of insanity and automatically detained at the pleasure of the Lieutenant Governor of British Columbia pursuant to the Criminal Code provisions in effect at the time. After being detained in safe custody at the Forensic Psychiatric Institute for a number of months, Mr. Orlowski was ordered conditionally discharged by the Lieutenant Governor on April 17, 1991.

In 1991, Parliament enacted Part XX.1 of the Criminal Code , and Mr. Orlowski became entitled to a periodic review of his status by the Review Board. Since the enactment of Part XX.1, Mr. Orlowski has had seven disposition hearings pursuant to s. 672.54 of the Criminal Code . Each time, the Review Board has denied him an absolute discharge but has ordered that he be discharged on conditions. Mr. Orlowski successfully appealed the March 2, 1992 disposition of the Review Board to the British Columbia Court of Appeal on a question of law: Orlowski v. British Columbia (Attorney-General) (1992), 75 C.C.C. (3d) 138 (“Orlowski No. 1”). However, on March 31, 1993, Mr. Orlowski was again discharged on conditions.

Mr. Orlowski next ran afoul of the law as a result of an incident with a 14- year-old girl on July 25, 1993, while he was conditionally discharged from the Forensic Psychiatric Institute. He was charged with sexual assault and returned to the Institute where, after a hearing, the Review Board ordered that he again be discharged on conditions. Mr. Orlowski unsuccessfully appealed this disposition to the British Columbia Court of Appeal: Orlowski v. British Columbia (Attorney General), [1994] B.C.J. No. 1626 (QL). Mr. Orlowski pleaded guilty to the charge of sexual assault and was sentenced to one day in prison on March 14, 1995. The sentencing judge concluded that it would be “in the best interests of society and the accused, that he should be sentenced to a day in custody and then remain under the continuing auspices of the Forensic Psychiatric Institute”. On July 26, 1995, Mr. Orlowski began residing in his brother’s home and on November 1, 1995, he was discharged to the care of the Adult Forensic Outpatient Clinic.

The Review Board hearing that led to this appeal commenced on July 6, 1995. After hearing evidence from Mr. Orlowski’s treatment team, the Board adjourned the meeting to obtain more information. The Board requested psychological testing, an assessment to review the possibility of a directed placement, a risk assessment, and the transcript from the sentencing proceedings in respect of the sexual assault charge. The proceedings concluded on September 8, 1995, after two further days of hearings.

The Review Board delivered its decision on September 25, 1995. Applying the decision of the Court of Appeal in Orlowski No. 1, the Board denied Mr. Orlowski an absolute discharge because “though the accused does not appear to be an active and ongoing risk to himself or other members of the public as at the time of the hearing, under certain circumstances he could be such a risk and, indeed, could be a significant risk”. Instead, the Board again discharged Mr. Orlowski on conditions stating that “[Mr. Orlowski] clearly needs the opportunity to prove himself”. The Board’s discharge order included a general condition that Mr. Orlowski continue to be subject to the general direction and supervision of the Director, Adult Forensic Psychiatric Services, a condition requiring him to report to the Director at least once every two weeks, various conditions concerning his place of residence, and conditions prohibiting him from using alcohol, drugs or firearms.

Pursuant to the statutory right of appeal in s. 672.72, Mr. Orlowski appealed four of the conditions imposed by the Review Board in the September 25, 1995 disposition. He did not seek an absolute discharge. During the course of the appeal, three of the conditions were modified with the consent of the parties. The British Columbia Court of Appeal rejected Mr. Orlowski’s challenge to the fourth condition and dismissed the appeal on July 29, 1996: 79 B.C.A.C. 16.

Mr. Orlowski, along with Mr. Winko and Mr. Bese, appellants on two of the companion appeals, subsequently challenged the constitutionality of the provisions of the Criminal Code dealing with the disposition of NCR accused before a different panel of the Court of Appeal. In a decision rendered on November 19, 1996 (84 B.C.A.C. 68), the majority found that the provisions of Part XX.1 did not violate s. 7 or s. 15(1) of the Canadian Charter of Rights and Freedoms . Williams J.A., dissenting, found that the legislation imposed a burden of proof on the applicant contrary to s. 7 of the Charter and could not be justified under s. 1. It is from this decision that this appeal is brought.

In this Court, Mr. Orlowski and his co-appellants on the companion appeals submit that s. 672.54 violates their liberty rights guaranteed by s. 7 and their equality rights guaranteed by s. 15(1) of the Charter , and that neither infringement is justified under s. 1 of the Charter . They seek a declaration that the Criminal Code provisions are of no force and effect and an order that they be granted absolute discharges.

The following constitutional questions were stated by the Chief Justice on October 16, 1997:

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, including people with a mental disability, who have been found not criminally responsible on account of mental disorder?

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 so, can these infringements be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ?

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.

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.

Mr. Orlowski did not appeal the July 29, 1996 decision of the British Columbia Court of Appeal upholding the conditional discharge ordered by the Review Board on September 25, 1995. Before this Court, Mr. Orlowski based his argument and claim for relief entirely on the alleged unconstitutionality of s. 672.54. It is therefore unnecessary to consider whether the Court of Appeal erred in refusing to overturn or amend the decision of the Review Board to release Mr. Orlowski on conditions. However, I would observe that it appears that the majority of the Board in its September 25, 1995 decision may have proceeded on the basis that, if it was not satisfied that the appellant Mr. Orlowski did not constitute a significant risk to public safety, it must continue to impose restrictive conditions. Such an interpretation would not be in accordance with the interpretation of s. 672.54 set out in these reasons.

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, including people with a mental disability, who have been found not criminally responsible on account of mental disorder?

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 so, can these infringements be demonstrably justified in a free and democratic society under 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. ‑‑

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] 2 S.C.R. 625, Bese v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 722, and R. v. LePage, [1999] 2 S.C.R. 744.

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.

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.

In the case at bar, unlike McLachlin J. (at para. 13), I find that if the Board proceeded on the basis that it was to grant an absolute discharge if it was satisfied that Mr. Orlowski did not pose a significant threat to public safety, it correctly interpreted the impugned legislation.

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