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Criminal - NCR - High-Risk Accused (HRA)

. R. v. Hadfield

In R. v. Hadfield (Ont CA, 2023) the Court of Appeal usefully canvasses the NCR 'high risk accused' (HRA) regime:

[1] The appellant was found guilty of manslaughter and robbery, and subsequently found to be not criminally responsible on account of mental disorder (“NCR”). The trial judge designated him a high risk accused (“HRA”) pursuant to s. 672.64(1)(a) of the Criminal Code. He appeals from that designation.

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A. HRA REGIME

[7] The HRA regime was enacted by Parliament on July 11, 2014. The purpose of the regime was to protect the public from NCR accused who are considered dangerous and who present an unacceptably high risk to the public, requiring a further reduction in their liberty above the traditional oversight mandated by the Review Board.

[8] Section 672.64(1) provides:

On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be a high-risk accused if the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence, as defined in subsection 672.81(1.3), the accused was 18 years of age or more at the time of the commission of the offence and

(a) the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person; or

(b) the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

[9] Therefore, to attract an HRA designation, an accused must first have been found to be NCR for a serious personal injury offence as defined in s. 672.81(1.3) of the Code and be 18 years or older when the offence was committed. The Crown must then satisfy either of two prongs: (i) there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another; or (ii) the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another. In this case, the Crown relied only on the first prong and did not suggest that the appellant’s conduct consisted of any acts of a sufficiently brutal nature.

[10] As is clear from the language of subsection (1), the disposition is discretionary in nature.

[11] Paciocco J.A. explained the HRA scheme in Cousineau (Re), 2021 ONCA 760, at para. 49:

[A] high-risk accused designation under s. 672.64 is part of the scheme for identifying the available dispositions. Its role is to determine where on the ladder of available dispositions the accused’s case should stand. Specifically, if the accused is found not to present a “significant threat to the safety of the public” the accused is to be absolutely discharged pursuant to s. 672.54(a). If the accused poses a “significant threat to the safety of the public”, the accused is to be subject to any disposition available pursuant to s. 672.54(b) and (c), including a conditional discharge or a detention order with conditions. If the accused is not simply a “significant threat to the safety of the public” but also qualifies as a high-risk accused and is designated a high-risk accused by a court pursuant to s. 672.64(1), the accused will be restricted to the disposition restrictions identified in s. 672.64(3). It is sensible and important that each of these inquiries take place employing the same focus, and it is not controversial that the other steps in the disposition eligibility ladder involve an examination of the inherent or endemic risk of violence the accused presents.

[12] As such, the “substantial likelihood” language of s.672.64(1)(a) requires a risk level higher than the “significant threat” characterization found in s. 672.54 for Review Board jurisdiction. In Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, McLachlin J. (as she then was) described the latter at para. 62 as a “real risk of physical or psychological harm … that is serious in the sense of going beyond the merely trivial or annoying.” In describing the distinction, Devlin J. stated in R. v. Schoenborn, 2017 BCSC 1556, 354 C.C.C. (3d) 393, at para. 42:

[T]he statutory context and legislative history support the conclusion that Parliament intended to require a finding of a greater level of risk for a[n] HRA designation under s. 672.64(1)(a) than is necessary to keep a[n] NCR accused under Review Board jurisdiction under s. 672.54. The purpose of the HRA regime is to protect the public from NCR accused who are considered to present an unacceptably high risk, requiring a further reduction in their liberty in the form of mandatory custodial detention and other restrictions. It would be illogical to ground these liberty deprivations in the same level of risk that is already required to maintain Review Board jurisdiction over a[n] NCR accused in the pre-existing NCRMD regime, which already provides for custodial detention where necessary. To do so would unduly broaden the scope of the HRA criteria and result in an interpretation that would not properly reflect the scheme or object of the legislation. It would not reflect the object of the legislation because it would potentially capture those who do not pose an unacceptably high risk to members of the public.

[13] The use of the words “substantial likelihood” denotes a high degree of probability that the accused will endanger either the life or safety of another.

[14] Section 672.64(2) provides that all relevant evidence is to be considered by a court in deciding whether to make the designation. This includes:

(a) the nature and circumstances of the offence;

(b) any pattern of repetitive behaviour of which the offence forms a part;

(c) the accused’s current mental condition;

(d) the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment; and

(e) the opinions of experts who have examined the accused.

[15] These factors are not prerequisites to a designation nor are they exhaustive. However, each is to be considered by the court.

[16] If the court finds the accused to be an HRA, a disposition shall be made directing the accused to be detained in the custody of a hospital subject to significant restrictions. Specifically, s. 672.64(3) states:

If the court finds the accused to be a high-risk accused, the court shall make a disposition under paragraph 672.54(c), but the accused’s detention must not be subject to any condition that would permit the accused to be absent from the hospital unless

(a) it is appropriate, in the opinion of the person in charge of the hospital, for the accused to be absent from the hospital for medical reasons or for any purpose that is necessary for the accused’s treatment, if the accused is escorted by a person who is authorized by the person in charge of the hospital; and

(b) a structured plan has been prepared to address any risk related to the accused’s absence and, as a result, that absence will not present an undue risk to the public.

[17] The designation is to be reviewed by the Review Board every 12 months but that timeframe may be extended on consent.[1] The Board does not have discretion to grant an absolute or conditional discharge while the designation is in place, or to impose any condition permitting the HRA accused to be absent from the hospital, except under the restrictive terms of s. 672.64(3). Once a designation has been made, it may only be removed by a Superior Court judge on a request for review by the Review Board pursuant to s. 672.84(1).

[18] Given the restrictive nature of the disposition as described in s. 672.64(3), it follows that s. 672.64(1) should be interpreted in that light. Put differently, an HRA designation is exceptional in nature and should be imposed sparingly.

[19] The judicial decisions in which the HRA designation has been applied are limited in number and distributed unevenly across the country. The designation appears never to have been applied in any publicly reported decisions from Alberta, Manitoba, Nova Scotia, Prince Edward Island, Saskatchewan, or the Territories. The Crown sought to apply the designation at least once in British Columbia but was unsuccessful: Schoenborn. Conversely, the Crown successfully sought the designation in at least one New Brunswick case: R. v. Raymond, 2020 NBQB 251.

[20] An HRA designation was made in at least six Quebec decisions: Lafrenière c. R., 2022 QCCA 96; Gaudette c. R., 2021 QCCA 1071; R. c. Ferland, 2022 QCCS 2166; R c. F.J., 2020 QCCS 3124; R. c. Langlois, 2023 QCCS 3352; and R. c. S.F., 2019 QCCS 5339. The designation was refused in R. v. Blais, 2022 QCCS 1625. In Lafrenière, at para. 16, the Quebec Court of Appeal reiterated the exceptional nature of an HRA designation.

[21] The Crown successfully sought a contested HRA designation in at least four Ontario decisions: Cousineau; R. v. Grant, 2018 ONSC 3581; R. v. Carter, 2015 CarswellOnt 15574; and Gautreau, Re, 2023 CarswellOnt 9351 (Ont. Rev. Bd.). In one case, the accused and the Crown jointly submitted that an HRA designation was appropriate: R. v. Watts, 2020 ONSC 4671, at para. 14. The designation was refused in R. v. Caines, 2023 ONSC 5482.

[22] An HRA designation therefore appears to be a rare occurrence in Canada. Given the paucity of designations, judicial consideration of the applicable statutory provisions has been limited. The courts that have applied the HRA designation have infrequently commented on its nature, instead focusing narrowly on whether the criteria requisite for its application have been met. Some courts have observed that the regime has constitutional implications (see e.g., Schoenborn), though none appear to have analyzed whether the regime actually contravenes the Canadian Charter of Rights and Freedoms.

[23] Some commentary has been critical of the HRA regime, particularly as it relates to its constitutionality. See by way of example: Rebecca Sutton, “Canada’s Not Criminally Responsible Reform Act: Mental Disorder and the Danger of Public Safety” (2013) 60:1 Crim. L.Q. 41; Canadian Bar Association, Bill C-54 – Not Criminally Responsible Reform Act (Ottawa: National Criminal Justice Section of the Canadian Bar Association, 2013); Michelle O’Bonsawin, “Bill C-14 – Amendments to Part XX.1 of the Criminal Code: A Knee Jerk Reaction” (2016) 21 Can. Crim. L. Rev. 53.

[24] However, it must be emphasized that the constitutionality of the HRA regime is not in issue on this appeal and therefore is not addressed.

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C. STANDARD OF REVIEW

[28] The starting point in this analysis is the applicable standard of review. Section 672.64(5) provides that an HRA designation is a disposition. As such, the appeal provisions in Part XX.1 of the Code apply and the standard of review is set out in s. 672.78(1) of the Code. An appeal may be allowed if the court is of the opinion that: (a) the decision is unreasonable and cannot be supported by the evidence; (b) the decision is based on a wrong decision on a question of law; or (c) there was a miscarriage of justice. As indicated, the appellant relies on the first prong in support of his argument that the standard of review has been met.

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[40] To reiterate, as evident from the language of s. 672.64(1), an HRA designation is a discretionary decision. In this case, the trial judge did not err in fact or in law. His decision was reasonable, was supported by the evidence, and is entitled to deference.