Winko v British Columbia (Forensic Psychiatric Institute)

The appellant was schizophrenic and was arrested for attacking pedestrians on the street with a knife. Prior to the incident he had been hearing voices. The appellant was charged with aggravated assault, assault with a weapon, and possession of a weapon for purposes dangerous to the public peace. He was found not criminally responsible (“NCR”) on account of mental disorder at trial, and was institutionalized at a psychiatric hospital.

Under section 672.54 of the Canadian Criminal Code, a court or Review Board may direct that an accused found NCR on account of mental disorder be discharged absolutely, subject to conditions, or detained in custody in a hospital. The Review Board considered the appellant’s status and directed he be given a conditional discharge. The appellant appealed the decision and asked for an absolute discharge. The appellant then argued that s. 672.54 of the Criminal Code violated his constitutional rights under the Canadian Charter of Rights and Freedoms. He argued that the provision violated the section 7 right to liberty and security of the person contrary to the principles of fundamental justice. He also argued that the provision discriminated against persons found NCR on account of mental disorder, and therefore violated the equality rights guaranteed by section 15(1) of the Charter.

The main issue before the Court was whether s. 672.54 of the Criminal Code violated sections 7 and 15(1) of the Charter.

The Court found that s. 672.54 did not violate sections 7 or 15 of the Charter, and dismissed the appeal.

The Court held that s. 672.54 does not impose on the NCR accused a burden of proving a lack of dangerousness. If the court or Review Board fails to conclude, on the evidence, that the NCR offender poses a significant threat to public safety, it must grant an absolute discharge. The NCR accused is relieved of any evidentiary burden.

The Court held that s. 672.54 did not violate the principles of fundamental justice contrary to section 7 that prohibit vagueness, improper onus and overbreadth. The Court found that the provision’s standard of “significant threat to the safety of the public” satisfied the test of providing sufficient precision for legal debate, and was therefore not unconstitutionally vague. The Court also found that the scheme created by the provision was not overbroad. The dual purposes of the scheme are to protect the public from significant threats to public safety while protecting the NCR accused’s liberty to the greatest extent possible. The NCR accused must be discharged absolutely if he or she is not a significant threat to public safety. In cases where a significant threat is established, the provision requires the least onerous and restrictive disposition of the accused be chosen.

The Court held that s. 672.54 did not violate the equality rights guaranteed by section 15(1). The scheme treats the individual NCR accused on the basis of their actual situation. Rather than denying equality, this individualized treatment recognizes the NCR accused’s disability and personal situation and creates a system that deliberately weakens the stereotype of the mentally ill as dangerous

“The dual objectives of Part XX.1, and s. 672.54 in particular, are to protect the public from the NCR accused who poses a significant threat to public safety while safeguarding the NCR accused’s liberty to the maximum extent possible. To accomplish these goals, Parliament has stipulated (on the interpretation of s. 672.54 set out above) that unless it is established that the NCR accused is a significant threat to public safety, he must be discharged absolutely. In cases where such a significant threat is established, Parliament has further stipulated that the least onerous and least restrictive disposition of the accused must be selected.” (para 71)

“A person falls under Part XX.1 only if the judge is satisfied that he or she was unable to know the nature of the criminal act or that it was wrong. The assessment is based on the individual’s situation. It does not admit of inferences based on group association. More importantly, the disposition of the NCR accused is similarly tailored to his or her individual situation and needs, and is subject to the overriding rule that it must always be the least restrictive avenue appropriate in the circumstances.” (para 88)

“[I]n neither its purpose nor its effect does the differential treatment mandated by Part XX.1 send a negative message to society about the NCR accused. Nor can it reasonably be understood to demean their dignity as individual human beings. Rather, the process it lays down and the treatment options for which it provides embody the message that every NCR accused is equally entitled to all protections available to other people, subject only to such constraints as may be required as a result of his or her illness in the interest of public safety.” (para 91)