R. v. Owen, [2003] 1 S.C.R. 779, 2003 SCC 33, 2003 SCC 33 (2003)

R. v. Owen, [2003] 1 S.C.R. 779, 2003 SCC 33

Her Majesty The Queen Appellant v.

Terry Steven Owen Respondent

Indexed as: R. v. Owen

Neutral citation: 2003 SCC 33.

File No.: 28700.

2003: January 15; 2003: June 6.

Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for ontario

Criminal law - Mental disorder - Dispositions by Review Board - Standard of review applicable to Board's order - Criminal Code, R.S.C. 1985, c. C-46, s. 672.78.

Criminal law - Mental disorder - Review Boards - Dispositions by Review Board - Accused found not criminally responsible on account of mental disorder - Accused having ongoing substance abuse problems and continuing to show some propensity towards violence - Review Board ordering continued detention of accused at psychiatric hospital - Whether Board's order unreasonable - Criminal Code, R.S.C. 1985, c. C-46, ss. 672.54, 672.78.

Criminal law - Mental disorder - Review Boards - Appeal on transcript - Additional evidence - Review Board ordering continued detention of accused at psychiatric hospital - Whether fresh post-review affidavit evidence adduced by Crown properly excluded by Court of Appeal - Meaning of "interests of justice" - Criminal Code, R.S.C. 1985, c. C-46, s. 672.73(1).

The respondent was found to be not criminally responsible ("NCR") on account of mental disorder for the offence of second degree murder committed in 1978 in a psychotic state induced by drug abuse. Following a period of detention in various institutions for mental health care, he was gradually released into the community until 1987 when he was convicted of possession of a prohibited weapon, break and enter with intent to commit an indictable offence and possession of property obtained by crime. After the completion of his sentence, the respondent was returned to custodial care, where other incidents involving violence occurred. Efforts were again made to release the respondent gradually into the community, but the problems with substance abuse re-occurred, and he continued to show some propensity towards violence. Review Board dispositions in 1994, 1995 and 1996 provided for conditional discharges but in 1997, when the respondent's urine tested positive for cannabis, the psychiatric hospital told the Board that it could no longer support a conditional discharge order because of the respondent's continued substance abuse and the hospital's need for flexibility "to react quickly to known increases in risk".

Under s. 672.54 of the Criminal Code, the Board's disposition must be the least onerous and least restrictive to the accused, having regard to (1) the need to protect the public from dangerous persons, (2) the mental condition of the accused, (3) the reintegration of the accused into society and (4) the other needs of the accused. The Board, after a full hearing, concluded that the respondent constituted a significant danger to the safety of the public and ordered his continued detention at a psychiatric hospital. At the Court of Appeal, the Crown sought to bolster the Board's decision with fresh affidavit evidence which alleged that, since the date of the Board hearing, the respondent had punched another patient, threatened to kill yet another patient, and was found in possession of prohibited drugs. The Court of Appeal declined to admit the fresh evidence, proceeded to review the Board's order based on the evidence available at the original hearing, set aside the Board's order as unreasonable, and directed that the respondent be absolutely discharged.

Held (Arbour J. dissenting): The appeal should be allowed. The Review Board's order was not unreasonable and should be reinstated.

Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, LeBel and Deschamps JJ.: The Review Board's assessments of mental disorders and attendant safety risks call for significant expertise and the appropriate standard of review, reflected in s. 672.78 of the Criminal Code, corresponds to reasonableness simpliciter.

The Court of Appeal reweighed the evidence and found it wanting. That assessment, however, was for the Board to make, and the decision it made was reasonably open to it on the evidence. It was not enough to suggest that other members of other review boards might have taken a different view of the evidence. The Review Board could reasonably conclude that the respondent's demonstrated capacity for violence when taking amphetamines or cocaine, now linked to recent evidence of resumed use of cocaine, rendered him a significant threat to the public's safety. The "logical process" by which it sought to draw its conclusion from the resumed use of cocaine was squarely within its expertise.

The Ontario Court of Appeal pointed out that from 1994 to 1996 the respondent had been granted conditional discharges, but in 2000 the Review Board was required to deal with the respondent's situation as it found it to be in ...

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