R. v. D.B., (2004) 252 Sask.R. 1 (PC)

• Judge: Turpel-Lafond, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: April 02, 2004
• Jurisdiction: Saskatchewan
• Citations: (2004), 252 Sask.R. 1 (PC);2004 SKPC 43

R. v. D.B. (2004), 252 Sask.R. 1 (PC)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. AP.007

Her Majesty the Queen v. B.(D.)

(2004 SKPC 43)

Indexed As: R. v. D.B.

Saskatchewan Provincial Court

Turpel-Lafond, P.C.J.

April 2, 2004.

Summary:

A youth was charged with sexual assault. At issue was whether the youth, who suffered from Fetal Alcohol Syndrome (FAS), was fit to stand trial.

The Saskatchewan Provincial Court, in a decision reported at 240 Sask.R. 161, held that the youth was not fit to stand trial. Pursuant to s. 672.54 of the Criminal Code, the only two possible dispositions were detention in a hospital or release in the community on conditions. The youth argued that s. 672.54 infringed his s. 7 Charter rights to liberty and security of the person in a manner contrary to the principles of fundamental justice by not affording him an absolute discharge. He also claimed that s. 672.54 discriminated against him contrary to s. 15(1) of the Charter because it failed to take into account that he was unlike other accused persons who suffered from mental disorders. In particular, because the youth's FAS was a permanent mental and physical disability that prevented him from ever standing trial, he was adversely affected by the operation of the s. 672.54 regime.

The Saskatchewan Provincial Court held that the youth's ss. 7 and 15(1) Charter rights were violated. The court read into s. 672.54 the availability of an absolute discharge for people found unfit to stand trial. The court granted the youth an absolute discharge.

Civil Rights - Topic 659

Liberty - Limitations on - Committal of or disposition re accused with mental disorder - A youth (D.) had partial Fetal Alcohol Syndrome (FAS) and was mentally handicapped - He was declared unfit to stand trial for sexual assault - Under s. 672.54 of the Criminal Code, the only two possible dispositions were detention in a hospital or release into the community on conditions - An absolute discharge was only available for persons found not criminally responsible - Because D.'s FAS was permanent and could not be treated, he would never be fit to stand trial - He could remain in the review board system indefinitely - However, he posed no risk to public safety - The Saskatchewan Provincial Court held that the application of s. 672.54 in D.'s case offended s. 7 of the Charter - D.'s liberty and security interests were engaged - The court held that s. 672.54 was overbroad in its application to D.'s case and did not accord with the principles of fundamental justice - The mental health regime was not designed for D.'s circumstances (i.e., a person with life-long disabilities who would never be fit and who did not pose a public safety risk) - See paragraphs 43 to 66.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Civil Rights - Topic 659 ].

Civil Rights - Topic 1133

Discrimination - Criminal and quasi-criminal law - Committal of or disposition re accused with mental disorder (insanity) - A youth (D.) had partial Fetal Alcohol Syndrome (FAS) and was mentally handicapped - He was declared unfit to stand trial for sexual assault - Under s. 672.54 of the Criminal Code, the only two possible dispositions were detention in a hospital or release into the community on conditions - An absolute discharge was only available for persons found not criminally responsible - Because D.'s FAS was permanent and could not be treated, he would never be fit to stand trial - He could remain in the review board system indefinitely - However, he posed no risk to public safety - The Saskatchewan Provincial Court held that the criminal law mental health disorder regime breached D.'s s. 15(1) Charter rights - Section 672.54 and the related provisions did not take into account the fact that among the class of persons found unfit there were those who would never be fit and had FAS or permanent neurological disability, but posed no public safety risk - The regime created disadvantages for D. compared to others within it - Because of D.'s mental and physical disability, he had been grouped into a larger class of mentally disordered persons who were unfit, without regard to the unique characteristic of his particular disability - His needs and circumstances were not contemplated in the construction of the generic mental health regime - See paragraphs 67 to 91.

Civil Rights - Topic 1392

Security of the person - Health care (incl. mental health) - Committal or disposition -[See Civil Rights - Topic 659 ].

Civil Rights - Topic 3107.2

Trials - Due process - Fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - [See Civil Rights - Topic 659 ].

Civil Rights - Topic 5644

Equality and protection of the law - Committal of or disposition re accused with mental disorder - [See Civil Rights - Topic 1133 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - A youth (D.) had partial Fetal Alcohol Syndrome (FAS) and was mentally handicapped - He was declared unfit to stand trial for sexual assault - Under s. 672.54 of the Criminal Code, the only two possible dispositions were detention in a hospital or release into the community on conditions - An absolute discharge was only available for persons found not criminally responsible - Because D.'s FAS was permanent and could not be treated, he would never be fit to stand trial - He could remain in the review board system indefinitely - However, he posed no risk to public safety - The Saskatchewan Provincial Court held that D.'s ss. 7 and 15(1) Charter rights were violated - The court held that a stay of proceedings was not the most appropriate remedy for D. or others in his position - A proper remedy should be available to either a court or a review board to be properly responsive to the interests of individuals in D.'s situation - A review board did not have jurisdiction to grant a stay of proceedings - See paragraph 97.

Civil Rights - Topic 8380.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Reading in - A youth (D.) had partial Fetal Alcohol Syndrome (FAS) and was mentally handicapped - He was declared unfit to stand trial for sexual assault - Under s. 672.54 of the Criminal Code, the only two possible dispositions were detention in a hospital or release into the community on conditions - An absolute discharge was only available under s. 672.54(a) for persons found not criminally responsible - Because D.'s FAS was permanent and could not be treated, he would never be fit to stand trial - He could remain in the review board system indefinitely - However, he posed no risk to public safety and his foster family could meet his needs - The Saskatchewan Provincial Court held that D.'s ss. 7 and 15(1) Charter rights were violated - The court held that the appropriate remedy was to read into s. 672.54(a) phrasing that would permit an absolute discharge to be available for persons declared unfit to stand trial - See paragraphs 98 to 106 - The court granted D. an absolute discharge - See paragraphs 119 and 120.

Criminal Law - Topic 93.82

General principles - Mental disorder - Dispositions by court or review board - Absolute discharge - [See Civil Rights - Topic 8380.1 ].

Criminal Law - Topic 93.94

General principles - Mental disorder - Dispositions by court or review board - Jurisdiction and powers - [See Civil Rights - Topic 8374 ].

Criminal Law - Topic 93.99

General principles - Mental disorder - Dispositions by court or review board - Where accused found unfit to stand trial - [See Civil Rights - Topic 659 , Civil Rights - Topic 1133 , Civil Rights - Topic 8374 and Civil Rights - Topic 8380.1 ].

Cases Noticed:

R. v. Demers (R.), [2002] J.Q. No. 590 (S.C.), consd. [para. 17].

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. 25].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481, refd to. [para. 26].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 46, footnote 7].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 46, footnote 7].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 46, footnote 8].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 46, footnote 9].

Stelco Inc. et al. v. Canada (Attorney General), [1990] 1 S.C.R. 617; 108 N.R. 161, refd to. [para. 46, footnote 10].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [paras. 47, footnote 11].

Nova Scotia (Attorney General) v. Walsh - see Walsh v. Bona.

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273, refd to. [para. 48, footnote 12].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 48, footnote 13].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 48, footnote 14].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 48, footnote 15].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 49, footnote 16].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 49, footnote 16].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 49, footnote 17].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (2004), 315 N.R. 201; 183 O.A.C. 1, refd to. [para. 52].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 54].

R. v. T.J., [1999] Y.J. No. 57 (Terr. Ct.), refd to. [para. 65].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 69].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 72].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 80, footnote 16].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 80].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 80].

Symes v. Minister of National Revenue, [1993] 4 S.C.R. 695; 161 N.R. 243, refd to. [para. 80].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 80].

Thibaudeau v. Minister of National Revenue, [1995] 2 S.C.R. 627; 182 N.R. 1, refd to. [para. 80].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 80].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 80].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 80].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 80].

R. v. Fera, [2002] O.J. No. 2380 (C.J.), refd to. [para. 100].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 101].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 106].

R. v. W.A.L.D. (1) (2004), 245 Sask.R. 98; 2004 SKPC 40, refd to. [para. 110].

R. v. W.A.L.D. (2), [2004] Sask.R. Uned. 27; 2004 SKPC 42, refd to. [para. 110].

R. v. M.L. (2000), 187 Sask.R. 195 (Prov. Ct.), refd to. [para. 113].

R. v. B.L.M. - see R. v. B.M.

R. v. B.M. (2003), 241 Sask.R. 135; 313 W.A.C. 135; 2003 SKCA 135, refd to. [para. 113].

R. v. L.E.K. (2000), 203 Sask.R. 273; 240 W.A.C. 273 (C.A.), refd to. [para. 114].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 672.54 [para. 4].

Authors and Works Noticed:

Boland, F.J., Burill, R., Duwyn, M., and Karp, J., Fetal Alcohol Syndrome: Implications for Correctional Services (1998), generally [para. 116].

Conry, Julianne, and Fast, Dianne, Fetal Alcohol Syndrome and the Criminal Justice System (2000), pp. 2 [para. 75]; 45 [para. 77].

Tait, C., Fetal Alcohol Syndrome among Canadian Aboriginal Peoples: Review and Analysis of the Intergenerational Links to Residential Schools (2002), generally [para. 74].

Counsel:

G.G. Mitchell, Q.C., and V. Adamko, for the Crown;

S. Hopley and M. Lewans, for the accused.

This matter was heard at Saskatoon, Saskatchewan, by Turpel-Lafond, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on April 2, 2004.