BRITISH COLUMBIA REVIEW BOARD



DOUCET, Delisle August - December 15, 1997

IN THE MATTER OF
PART XX.1 (Mental Disorder) OF THE CRIMINAL CODE
R.S.C. 1985 c. C-46, as amended 1991, c. 43
AND
THE BRITISH COLUMBIA REVIEW BOARD
IN THE MATTER OF
THE DISPOSITION HEARING OF
DELISLE AUGUST DOUCET


1.     Delisle August Doucet ("the Accused") appeared before a panel of the British Columbia Review Board (the "Board") on December 15, 1997 having previously been charged with assault and mischief and having been found not criminally responsible by reason of mental disorder on October 3, 1997 in the Provincial Court of British Columbia at Victoria, B.C. Following that finding disposition was deferred by the Court to the Board; the first disposition hearing in the case was conducted at the December 15, 1997 hearing.

2.     The panel included Gail M. Dickson, alternate chairperson, Dr. Anthony Marcus and Marie Anderson. The Accused was present at the hearing, together with his counsel, Mr. D.M. McKimm. Also present were Mr. J.W. Ratel, counsel for the Attorney General of British Columbia, and Dr. S. Lohrasbe and others for the Adult Forensic Psychiatric Out Patient Services ("Forensics").

3.     The disposition information contained in the exhibit binder was marked as exhibits without objection. In addition to the disposition information, the Board had the benefit of hearing testimony from the Accused, Dr. S. Lohrasbe, S. Dankwerth, and E. French.

4.     At the outset of the hearing Mr. McKimm advised the panel that the Accused took the position the Board had no jurisdiction to conduct a hearing or make a disposition order. In summary, Mr. McKimm pointed out that, contrary to the requirements of section 672.47(1) of the Criminal Code of Canada, a hearing had not been conducted within forty-five days of the court's deferral of disposition. (As noted above, disposition was deferred by the court on October 3, 1997, seventy three days before the December 15, 1997 Board hearing convened.) The reason for this failure was apparently administrative, although the detail was never made clear. Mr. McKimm emphasized that, pursuant to section 672.47(2), the Crown applied to a provincial court judge for an extension of time in which to conduct the hearing, however, that application was denied. In Mr. McKimm's submission, in the result the Board's jurisdiction had been lost.

5.     In response to Mr. McKimm's objection Mr. Ratel, on behalf of the Crown, took the position that jurisdiction was not lost as a result of the Board's failure to hold a hearing within the forty-five day period specified in section 672.47(1). In summary, the Crown argued the failure to comply with the statutory time limit amounted to a procedural irregularity which, pursuant to section 672.53, did not affect the validity of the hearing. Dr. Lohrasbe, on behalf of Forensics, took no position on the jurisdictional point.

6.     In light of the fact that prior notice of the jurisdictional objection had not been given by the Accused and because the parties were all assembled for the purpose of a disposition hearing, it was agreed by all concerned that the hearing would proceed and the decision on jurisdiction would be reserved. The unanimous reasons of the panel on the question of both jurisdiction and disposition are outlined below.

JURISDICTION

Statutory Scheme

7.     A number of provisions found in Part XX.1 of the Criminal Code of Canada are relevant to a jurisdictional analysis. In particular, Section 672.38(1) provides as follows:

                     "672.38(1)          A Review Board shall be established or designated for each province to make or review dispositions concerning any accused in respect of whom a verdict of not criminally responsible by reason of mental disorder or unfit to stand trial is rendered, and shall consist of not fewer than five members appointed by the lieutenant governor in council of the province."                     

8.     Once a verdict of NCRMD of unfitness is rendered the court has two options: to make or defer a disposition. In circumstances where disposition is deferred, sections 672.46(1) and 672.47(1) provide that:

                     "672.46(1)          ... any order for the interim release or detention of the accused or any appearance notice, promise to appear, summons, undertaking or recognizance in respect of the accused that is in force at the time the verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered continues in force, subject to its terms, until the Review Board makes a disposition...                     

                     "672.47(1)          ... the Review Board shall, as soon as practicable but not later than forty-five days after the verdict was rendered, hold a hearing and make a disposition.                     

                     "          (2)          Where the court is satisfied that there are exceptional circumstances that warrant it, the court may extend the time for holding a hearing under subsection (1) to a maximum of ninety days after the verdict was rendered ..."                     

Accordingly, the Board's jurisdiction in a particular case is derived from a verdict of not criminally responsible by reason of mental disorder ("NCRMD") or unfit to stand trial ("unfitness"). Pursuant to sections 672.46 and 672.47, the Accused's bail status continues in force pending the Board's disposition and the Board is directed to hold a hearing within forty-five days of deferral.

9.     Part XX.1 of the Criminal Code includes a section dealing with procedural irregularities. Section 672.53 reads:

                     "672.53          Any procedural irregularity in relation to a disposition hearing does not affect the validity of the hearing unless it causes the accused substantial prejudice."                     

10.     What constitutes a "procedural irregularity" is not defined in Part XX.1 of the Criminal Code, however other provisions of the Code do provide some guidance. In particular, section 485(1) reads:

          "PROCEDURAL IRREGULARITIES                     

                     485(1)          Jurisdiction over an offence is not lost by reason of the failure of any court, judge, provincial court judge or justice to act in the exercise of that jurisdiction at any particular time, or by reason of a failure to comply with any of the provisions of this Act respecting adjournments or remands." (Emphasis added)                     

Unfortunately, the word "court" is not defined in the general interpretation section of the Criminal Code. "Court" is defined, however, in Section 672.1 as including:

                     "...a summary conviction court as defined in section 785, a judge, a justice and a judge of the court of appeal as defined in section 673"                     

According to Section 785, a "summary conviction court" includes:

                     "... a person who has jurisdiction in the territorial division where the subject-matter of the proceedings is alleged to have arisen and who                     
                     (a)     is given jurisdiction over the proceedings by the enactment under which the proceedings are taken,"                     

Interpretation of the Statutory Scheme

11.     In order to interpret the provisions at issue properly it is, in the panel's view, appropriate to take a remedial, liberal, and purposive approach and thus to consider the underlying objects of the statutory scheme. According to the British Columbia Court of Appeal in Davidson v. AGBC et. al. (1993) B.C.A.C. 111:

                     "The object of the legislation [the Mental Disorder Provision of the Criminal Code] is to protect society and the accused until the mental health of the latter has been restored."                     

12.     Should the requirements of Section 672.47 be interpreted to mean that a failure to conduct a hearing within forty-five days of deferral of disposition results in the Board losing jurisdiction? In the panel's view it should not. There is no case authority of which the panel is aware that is directly on point, however, there are certain decisions which provide guidance as to the approach which should be taken.

13.     In R. v. Talbot, a decision of the Honourable Judge Paris of the Ontario Court (Provincial Division) dated November 21, 1996, the court held that its failure to comply with the statutory requirement in section 672.33(1) to hold an inquiry not later than every two years in a case of unfitness did not result in a loss of jurisdiction. In coming to this conclusion, Paris P.C.J. referred to a number of cases in which jurisdiction was maintained despite a failure to bring prisoners to court for a bail review pursuant to a statutory time requirement. In the words of Paris, P.C.J. in Talbot:

                     "The common conclusion in these cases is that although the detention is unlawful the jurisdiction over the offence is not affected. In other words the failure to bring the prisoner to court as mandated is a collateral matter that affects the legality of the detention but not the jurisdiction over the offence." (p. 4)                     

14.     The bail cases considered in Talbot include Gagliardi and the Queen (1981) 60 C.C.C. 267; R. v. Reimer (1987) 47 Manitoba Reports (2d) 156; R. v. Pomfret (1990) 53 C.C.C. (2d) 56; and R. v. Neill (1990) 60 C.C.C. (3d) 26. Other decisions of similar import include R. v. Johnson (1993) B.C.D. Crim. Conv. 5150-01; Re Ferriera (1981) 58 C.C.C. (2d) 147; Vukelich v. Vancouver Pre-Trial Centre, Director (1993) 87 C.C.C. (3d) 32; and Ex Parte Cordes (1976) 31 C.C.C. (2d) 279. In Paris P.C.J.'s view the analysis conducted in the bail cases could be applied by analogy to the issue before him. In the panel's view that is also true in this case.

15.     Section 672.47 applies both to circumstances in which a final verdict has been rendered (NCRMD) and circumstances in which the trial process is not yet complete (unfitness). In both cases, unless and until the Board makes a disposition an Accused remains subject to bail conditions imposed by a court. In the panel's view a loss of Board jurisdiction based on failure to meet statutory time requirement for the conduct of a disposition hearing would be inconsistent with this scheme. If jurisdiction is, in fact, lost in these circumstances, an Accused could remain on bail for an indefinite period and would be deprived of the benefit of a regular review by an expert panel, as established by Part XX.1 of the Criminal Code. In the panel's view, and taking a purposive approach to statutory interpretation, this is not what parliament intended. Rather, in the panel's view, parliament intended that an Accused who has been denied access to a hearing within the statutory time prescribed is entitled to have that right enforced by way of prerogative relief.

16.     The panel is also of the view that failure to conduct a hearing within the statutory time prescribed amounts to a "procedural irregularity" within the meaning of section 672.53 of the Criminal Code. As noted above, the Board's jurisdiction is derived from a verdict of NCRMD or unfitness and, pursuant to section 672.47(1), this jurisdiction is to be exercised within forty five days of deferral of disposition. In the panel's view, a distinction should be drawn between the substantive issue of whether jurisdiction exists and the procedural issue of how and when it should be exercised. Pursuant to section 485(1), the failure to exercise jurisdiction in other Criminal Code contexts clearly amounts to a procedural irregularity and arguably the Board falls within the definition of "court" for the purposes of that section, taking into account the language of sections 672.1 and 785 of the Criminal Code, as cited above. In the panel's view, taking into account the foregoing, it is reasonable to interpret section 672.53 in a manner which is internally consistent with other provisions of the Criminal Code and thus to hold that a failure to exercise jurisdiction in accordance with statutory time limits amounts to a procedural irregularity.

17.     The existence of section 672.53 of the Criminal Code does not mean that any procedural breach, however glaring or extreme, will not affect the validity of a hearing. Rather, the issue is one of substantial prejudice to the Accused. In the panel's view, and in the absence of evidence of actual prejudice, a delay of twenty eight days in the conduct of a disposition hearing does not on its face amount to "substantial prejudice".

18.     In coming to this conclusion, the panel is, of course, aware that other panels have expressed differing views (see, for example, the majority reasons In The Matter Of Dean Charles Crosson). With respect, however, this panel cannot agree. Taking into account the fact that public safety lies at the heart of Part XX.1 of the Criminal Code, in the panel's view an interpretation of the provisions at issue which leads to a loss of jurisdiction for short delays in the conduct of disposition hearings cannot be justified.

DISPOSITION

19.     At the outset, all parties agreed that, in the event the Board had jurisdiction to make a disposition order, a conditional discharge would be appropriate. Counsel for the Accused pointed out, however, that the panel should nonetheless consider whether an absolute discharge should be granted.

20.     Pursuant to section 672.54 of the Criminal Code of Canada, the Board is required to make the least onerous and least restrictive disposition available to the Accused, bearing in mind the need to protect the public from dangerous persons, the mental condition of the Accused, the reintegration of the Accused into society, and the other needs of the Accused. These factors were all taken into account by the Board in the course of its deliberations and the Board was guided by the principles enunciated in Orlowski v. British Columbia (Attorney General) (1992) 75 C.C.C. (3d) 138 (BCCA). In the Board's view, a conditional discharge in the terms outlined in the attached order is the least onerous and least restrictive disposition available.

21.     In coming to the conclusion that a conditional discharge should be granted the Board took into account all of the evidence contained in the disposition information and the viva voce testimony provided in the course of the hearing. In summary, the evidence reveals that the Accused suffers from a schizo-affective disorder which causes him, when acutely ill, to become psychotic, grandiose, paranoid, and aggressive. The Accused was apparently in such a state when he committed the index offences, which involved breaking a glass panel in a doorway and assaulting a nurse by pushing her against a wall. Unfortunately, the Accused has a history of failing to take psychotropic medication prescribed to him for the purposes of controlling the symptoms of his mental illness, and he has had difficulty over the years with substance abuse.

22.     Forensics recommend an ongoing program of intense supervision and monitoring for the Accused, by way of a conditional discharge disposition, to assist him in maintaining mental stability in the community. In the absence of such supervision, according to Dr. Lohrasbe in his report of December 9, 1997, the Accused "... is likely to deteriorate into overt psychotic episodes, which in the past have involved acts of violence." In all of the circumstances, the Board agrees that a conditional discharge order should be imposed, both for purposes of public safety and to assist the Accused in his community reintegration.

Gail M. Dickson, Q.C.
Alternate Chairperson


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