Bese 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 (“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] 2 S.C.R. 625, Orlowski v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 733, 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.

At the time of the Review Board disposition under appeal, Mr. Bese was 33 years old, single, unemployed, and living at Willingdon House, a boarding house for forensic psychiatric patients in Burnaby, B.C. Mr. Bese has a psychiatric history dating back to 1981, and has been admitted to psychiatric facilities on a number of occasions. At different times, he has been diagnosed with drug-induced psychosis, schizoaffective disorder, and bipolar disorder. He also has a history of substance abuse, and occasional non-compliance with treatment.

On August 3, 1987, he set fire to his father’s house. At trial he testified that he had made sure no one was in the house at the time, and that he had set the fire in order to be arrested so that he could prove his delusions, specifically that he was the second coming of Christ. Mr. Bese was convicted of arson on January 12, 1989, and given a suspended sentence with three years’ probation. One of the conditions of the probation order required him to regularly attend the Forensic Psychiatric Outpatient Clinic.

At 1:10 a.m. on December 28, 1993, Mr. Bese attended the office of CFOX Radio in Vancouver. After he was refused entry, he threatened to burn down the building and eventually entered the premises by breaking the glass door. When the police arrived, they heard Mr. Bese screaming and yelling. He claimed that he had seen Jim Morrison and John Lennon alive. He also commanded “Rock”, his pet cockatoo, to attack and kill the police. At the time of the incident, Mr. Bese had recently changed medication and thought he was facing eviction from his residence. Mr. Bese was charged with breaking and entering with intent to commit an indictable offence. On February 21, 1994, he was found not criminally responsible by reason of mental disorder. Pursuant to s. 672.54 of the Criminal Code , the court granted Mr. Bese a discharge with a number of conditions and restrictions, including the condition that he was to be subject to the supervision of the Director of Adult Forensic Psychiatric Services and that he was to reside where ordered by the Director.

In the 18-month period following his initial disposition, Mr. Bese’s status was considered by the Review Board on four occasions: May 16, 1994; June 17, 1994; February 10, 1995; and July 14, 1995. On each occasion, he was granted a conditional discharge. During this period, Mr. Bese was admitted to the Forensic Psychiatric Institute four times for further assessment and treatment. On three of the four occasions, he was returned to hospital because of suicidal gestures or statements, and on one occasion he threatened to destroy property. He was involved in altercations with another patient on two occasions. Prior to the final Review Board hearing, Mr. Bese was residing in the community at Willingdon House. It appeared that he was taking his medication and, although he was still experiencing delusions, his mental condition seemed to have stabilized.

The Review Board last considered Mr. Bese’s status on July 14, 1995. The Board denied Mr. Bese an absolute discharge because it was “unable to come to the opinion that [he did] not pose a significant threat”. Instead, the Board unanimously decided to discharge Mr. Bese on conditions. The conditions of discharge were directed toward: (a) monitoring Mr. Bese’s mental condition, (b) preventing Mr. Bese from possessing alcohol, drugs or firearms, and (c) protecting the employees of CFOX. This disposition was almost identical to the previous disposition made by the Review Board on February 10, 1995.

Pursuant to the statutory right of appeal in s. 672.72, Mr. Bese appealed the February 10, 1995 decision of the Review Board to the B.C. Court of Appeal. On July 29, 1996, the British Columbia Court of Appeal upheld the Review Board’s decision to order a conditional discharge: 79 B.C.A.C. 12.

Mr. Bese then turned to the Review Board’s disposition of July 14, 1995. Along with Mr. Winko and Mr. Orlowski, appellants on two of the companion appeals, he 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 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. Bese 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 September 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. Bese 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 February 10, 1995. Before this Court, Mr. Bese 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 the decision of the Review Board. However, I would observe that it appears that the majority of the Board on its February 10, 1995 hearing may have proceeded on the basis that, if it was not satisfied that the appellant Mr. Bese 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.

Finally, after the hearing of this appeal, Mr. Bese was absolutely discharged by the Review Board. His counsel has requested that his appeal be nonetheless maintained, relying on this Court’s discretion to do so outlined in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. In the circumstances of this case, I consider it to be appropriate for this Court to exercise its discretion to address Mr. Bese’s appeal on its merits.

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, Orlowski v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 733, 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. I agree with her (at para. 14) that this Court should exercise its discretion to decide the appeal notwithstanding the fact that Mr. Bese has been absolutely discharged.

As I explained in my reasons in Winko, I substantially agree with the analysis of my colleague 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, after reviewing the evidence, the Board was unable to reach the conclusion that the appellant would not be a significant threat to public safety. The Court of Appeal could not find that the Board’s decision was wrong in law, unreasonable, or not supported by the facts. Unlike McLachlin J. (at para. 13), I find that the Board and the Court of Appeal correctly interpreted the impugned provisions.

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