Germaine v. Yukon et al., 2009 YKCA 3

• Judge: Levine, Frankel and Tysoe, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: December 19, 2008
• Jurisdiction: Yukon
• Citations: 2009 YKCA 3;(2009), 269 B.C.A.C. 293 (YukCA)

Germaine v. Yukon (2009), 269 B.C.A.C. 293 (YukCA);

    453 W.A.C. 293

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. MY.001

Veronica Lydia Germaine (appellant) v. The Government of Yukon (respondent) and Director of Public Prosecutions (respondent) and Na'Cho Nyak Dun First Nation (respondent)

(08-YU604; 2009 YKCA 3)

Indexed As: Germaine v. Yukon et al.

Yukon Court of Appeal

Levine, Frankel and Tysoe, JJ.A.

April 30, 2009.

Summary:

On September 18, 2007, the accused was found not criminally responsible for several criminal charges by reason of a mental disorder, and was remanded under the jurisdiction of the Yukon Review Board. On April 30, 2008, the Board found that she continued to pose a significant risk of significant harm to the public and that a custodial hospital disposition was the least onerous and least restrictive disposition. It ordered that the accused be detained in the Whitehorse Correctional Centre (WCC), a designated "hospital" for the purpose of s. 672.1(1) of the Criminal Code. The accused appealed, submitting that her detention in the WCC did not meet the requirements of s. 672.54 of the Code, was unreasonable, and violated her ss. 7, 9 and 12 Charter rights.

The Yukon Court of Appeal dismissed the appeal.

Civil Rights - Topic 659

Liberty - Limitations on - Committal of or disposition re accused with mental disorder - The accused was found not criminally responsible (NCR) by reason of a mental disorder and was remanded under the Yukon Review Board's jurisdiction - The Board found that the accused continued to pose a significant risk of significant harm to the public and that a custodial hospital disposition was the least onerous and least restrictive disposition - It ordered her detention in the Whitehorse Correctional Centre (WCC), a designated "hospital" for the purpose of s. 672.1(1) of the Criminal Code - The accused appealed - She submitted that her detention in the WCC did not meet the requirements of s. 672.54 of the Code, was unreasonable, and violated her ss. 7, 9 and 12 Charter rights - The Yukon Court of Appeal dismissed the appeal - While the WCC was not the ideal place for the accused, or any person suffering a mental disorder, there was no evidence that there was any other place in Canada that offered the ideal setting for the accused in her particular circumstances, or that a conditional discharge into the community with the required supervision would meet the needs of the public and the accused - The Board had to make a disposition - It could not abandon its obligation because the available alternatives were not ideal - It had to balance all of the factors that it was required to consider, and make the disposition that best met the interests of the public and the accused, and was least onerous and least restrictive to the NCR accused.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 659 ].

Civil Rights - Topic 3825

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Committal of accused with mental disorder - [See Civil Rights - Topic 659 ].

Criminal Law - Topic 93.81

General principles - Mental disorder - Dispositions by court or review board - Considerations - [See Civil Rights - Topic 659 ].

Criminal Law - Topic 93.90

General principles - Mental disorder - Dispositions by court or review board - Detention (incl. place of and transfers) - [See Civil Rights - Topic 659 ].

Criminal Law - Topic 93.94

General principles - Mental disorder - Dispositions by court or review board - Jurisdiction and powers - [See Civil Rights - Topic 659 ].

Cases Noticed:

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481; 5 C.R.(4th) 253, refd to. [para. 5].

Penetanguishene Mental Health Centre et al. v. Ontario (Attorney General) et al., [2004] 1 S.C.R. 498; 318 N.R. 73; 185 O.A.C. 201; 2004 SCC 20, refd to. [para. 5].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 6].

D.J. v. Yukon (Review Board), 2000 YTSC 513, dist. [para. 21].

R. v. Rathburn (S.T.), [2004] Yukon Cases (TerrCt) 24; 2004 YKTC 24, dist. [para. 21].

R. v. Lewis (M.A.) (1999), 170 Nfld. & P.E.I.R. 278; 522 A.P.R. 278; 132 C.C.C.(3d) 163 (C.A.), refd to. [para. 22].

R. v. Kravchov (2002), 4 C.R.(6th) 137 (Ont. C.J.), refd to. [para. 57].

Counsel:

D. Christie, for the appellant;

D. McWhinnie, for the respondent, Director of Public Prosecutions;

S. Schorr, for the respondent, Government of Yukon.

This appeal was heard at Vancouver, B.C., on December 19, 2008, by Levine, Frankel and Tysoe, JJ.A., of the Yukon Court of Appeal. Levine, J.A., delivered the following decision for the court on April 30, 2009.