COURT OF APPEAL FOR ONTARIO

CITATION:
Kobzar (Re), 2012 ONCA 326

DATE: 20120516

DOCKET: M40978/C53899

Goudge, MacPherson and Juriansz JJ.A.

Yuriy Kobzar

Applicant

and

Her Majesty the Queen

Respondent

and

Ontario Shores Centre for Mental Health Sciences

Respondent

Joseph Di Luca and Erin Dann,
amicus curiae

Joanne K. Stuart, for the respondent Her Majesty the
    Queen

Ewa Krajewska, for the Ontario Shores Centre for Mental
    Sciences

Roy Lee, for the Attorney General of Canada

Heard: March 19, 2012

An application challenging the constitutionality of part
    of s. 672.75 of the
Criminal Code
that automatically suspended the
    absolute discharge granted by the Ontario Review Board on March 4, 2011, with
    reasons reported at
Kobzar (Re)

[2011] O.R.B.D. No. 742, when
    the Crown filed its Notice of Appeal on June 24, 2011.

Goudge and MacPherson JJ.A.:

A.

INTRODUCTION

[1]

The Crown appealed from an
    Ontario Review Board (the Review Board) disposition discharging the applicant
    Yuriy Kobzar absolutely (by a 4-1 majority).  The appeal was heard by this
    panel on February 29, 2012.  We dismissed the appeal in a four paragraph
    endorsement on the same date on the basis that the Review Boards decision was
    reasonable.

[2]

When the Crown filed its
    Notice of Appeal on June 24, 2011 against the absolute discharge disposition,
    pursuant to s. 672.75 of the
Criminal Code
the applicants absolute
    discharge was automatically suspended pending the determination of the appeal.
    Pursuant to s. 672.77 of the
Code
, on the suspension of the absolute
    discharge the disposition that was in effect before the absolute discharge was
    ordered revived.  Accordingly, from June 24, 2011 when the Crown filed its
    Notice of Appeal to February 29, 2012 when the appeal hearing took place, the
    applicants status reverted to a conditional discharge.  He lived in the
    community subject to the conditions that had been imposed by the Review Board
    at a hearing in 2010.

[3]

In the context of the Crown
    appeal of the absolute discharge disposition of the Review Board, the applicant
    brought an application challenging the constitutionality of a portion of s.
    672.75 of the
Criminal Code
as infringing ss. 7 and 9 of the
Charter
.
    Although this panel dismissed the Crown appeal immediately following the
    hearing on February 29, we scheduled the argument of the applicants
Charter
application for March 19, 2012.

B.

FACTS

[4]

On October 18, 2006, Kenkel
    J. found the applicant not criminally responsible on account of mental disorder
    (NCR) of criminal harassment and mischief under $5000.  The disposition was
    deferred to the Review Board.

[5]

In its initial disposition
    in 2007 and on its review in 2008, the Review Board ordered the detention of
    the applicant.  Pursuant to these dispositions, the applicant was detained in a
    minimum secure unit at the Ontario Shores Centre for Mental Health Sciences
    (the Hospital).

[6]

Following its annual reviews
    in 2009 and 2010, the Review Board ordered that the applicant be discharged with
    conditions.  The conditions included that he report to the Hospital at least
    once per week, notify the Review Board of any change of address or telephone
    number, take prescribed medications on his consent, refrain from certain
    contacts or attending at certain locations, and obtain permission to travel
    outside the province.

[7]

Following the annual review
    in 2011, the Review Board ordered, on March 3, 2011 with reasons released on
    May 27, 2011 and reported at
Kobzar
(
Re)
[2011] O.R.B.D. No. 742,
    that the applicant be discharged absolutely.  The majority of the Review Board,
    in a 4-1 decision, held at para. 43:

Applying the principles in
Winko
,
    we have not found with reasonable certainty a foreseeable and substantial risk
    of serious physical or psychological harm to members of the public caused by
    criminal conduct.  We therefore do not find that the accused poses a significant
    threat to the safety of the public and have ordered that the accused be
    discharged absolutely.

[8]

The Crown received the
    Review Boards decision on June 10, 2011.  It filed a Notice of Appeal on June
    24, 2011.  Section 672.75 of the
Criminal Code
provides:

672.75         The filing of a notice of appeal
    against a disposition made under paragraph 672.54(a) or section 672.58 suspends
    the application of the disposition pending the determination of the appeal.

[9]

The Review Boards order
    granting the applicant an absolute discharge was made pursuant to s. 672.54(a)
    of the
Code
.

[10]

Section
    672.77 of the
Code
provides:

Where the application of a disposition... is
    suspended, a disposition... that was in effect immediately before the
    disposition... appealed from took effect, shall be in force pending the
    determination of the appeal....

[11]

Pursuant
    to this provision, the applicants status reverted to a conditional discharge
    pending the determination of his appeal, a period of just over eight months.

[12]

The
    applicant, with the assistance of
amicus curiae
, does not assert that
    the entire s. 672.75 of the
Code
is unconstitutional.  He acknowledges
    that the automatic suspension of a disposition under s. 672.58, which deals
    with treatment orders, is appropriate.  However, he asserts that the other
    component of s. 672.75, which creates an automatic suspension of an absolute
    discharge order, is unconstitutional.  Accordingly, the remedy sought by the
    applicant is a declaration that the words paragraph 672.54(a) are of no force
    and effect.

C.

ISSUES

[13]

The
    issues are:

(1)

Does the court have jurisdiction
    to determine the constitutional issue raised by the applicant?

(2)

Do the words paragraph 672.54(a)
    in s. 672.75 of the
Criminal Code
violate ss. 7 and 9 of the
Charter
?

(3)

If the answer to (2) is Yes, are
    these statutory words saved by s. 1 of the Charter?

(4)

If the answer to (2) is Yes and
    the answer to (3) is No, what is the appropriate remedy?

D.

ANALYSIS

(1)

Jurisdiction

[14]

On
    January 31, 2012, Mr. Di Luca, who had been appointed
amicus
to assist
    the court, filed a notice of motion in the appeal seeking an order that s.
    672.75 is contrary to the
Charter of Rights and Freedoms
and is of no
    force and effect.  The consequence of success in this motion would mean the
    restoration of the respondents absolute discharge pending the Crowns appeal.

[15]

The
    motion and the appeal were scheduled before this court on February 29, 2012.

[16]

The
    Crown, the respondent,
amicus
and the hospital attended on that date.
    The Crown and
amicus
on behalf of the respondent were prepared to
    begin by arguing the motion.  The Hospital initially took no position on the
    motion, but, like the other parties, was prepared to argue the appeal.  This
    courts view was that while the appeal should proceed, the motion should be put
    over to March 19, 2012, so that sufficient time for proper argument could be
    provided.  The additional time was also to allow the Attorney General of Canada,
    who had received notice, to be invited to attend, given that this was a
    challenge to federal legislation.

[17]

The
    parties then argued the appeal which was dismissed from the bench with oral
    reasons.

[18]

On
    March 19, 2012, the Crown, the Attorney General of Canada, and the Hospital all
    opposed
amicus
motion on the merits and argued in support of the
    constitutionality of s. 672.75.  None of the parties argued that the court
    should not hear the motion on its merits.  Indeed
amicus
and the Crown
    agreed that the court had a clear jurisdiction to do so and should exercise its
    discretion to proceed.

[19]

We
    agree that this court has the jurisdiction to entertain this motion.  The
    motion was grounded in the facts of the respondents situation pending his
    appeal to this court.  It challenged the constitutionality of the restraint on
    his liberty pending that appeal, an appeal that the
Criminal Code
requires
    to be brought to this court.  That statutory regime makes this court
    responsible for the appeal procedure from Review Board decisions.  In our view,
    a functional and structural approach to that responsibility encompasses the
    determination of the constitutionality of restraints on the respondents
    liberty pending appeal.  See:
R. v. 974649 Ontario Inc.
,
2001 SCC 81, [2001] 3 S.C.R. 575, per
    McLachlin C.J., at paras. 36, 43 and 70.

[20]

Moreover,
    this court has the procedures and processes capable of fairly and justly
    resolving this incidental
Charter
issue.  We do not think Parliament
    would have intended to turn over to another forum an interim issue as bound up
    with the appeal as this is.

[21]

Had
    the respondent sought an order under s. 672.76 altering the restraints on his
    liberty pending appeal, it seems clear to us that the constitutionality of
    those restraints would have been in play.  For
amicus
to be prevented
    from raising this issue because it was raised by a separate motion, not a s.
    672.76 application, would be to allow form to triumph over substance.

[22]

It
    might be said that since the appeal had been decided when the motion was heard,
    the motion could no longer affect the respondents rights.  In that sense, the
    constitutional issue is moot.  See:
Borowski v. Canada (Attorney General)
,
    [1989] 1 S.C.R. 342, at p. 353.

[23]

However,
    the motion was not moot when it was brought.  Had it been brought before the
    appeal, for the reasons we have outlined, the court would have been obliged to
    address the question as an issue arising in a proceeding in this court.  The
    result would clearly have affected the respondents rights.  The fact that the
    appeal was heard first was due to the order of proceeding chosen by the court.
    In these circumstances, the courts discretion to hear the motion is clear.
    See:
Borowski
at p. 353:

Accordingly if, subsequent to the
    initiation of the action or proceeding, events occur which affect the
    relationship of the parties so that no present live controversy exists which
    affects the rights of the parties, the case is said to be moot.  The
    general policy or practice is enforced in moot cases unless the court exercises
    its discretion to depart from its policy or practice.

[24]

A
    number of considerations make it appropriate for this court to exercise its
    discretion to proceed to adjudicate the motion.

[25]

First,
    the motion raises an important issue for those NCR accused who are absolutely
    discharged by Review Boards.  NCR accused are a group who are generally less
    likely to be in a position to vigilantly advance their legal rights in a timely
    fashion without the aid of this courts discretion.

[26]

Second,
    although it will recur for others in the future, the issue is alive for an
    individual respondent only for a limited time, between the service of the
    notice of appeal and the hearing of the appeal.  Without the exercise of the
    courts discretion, the issue is likely to remain evasive of judicial review.

[27]

Third,
    as the Crown pointed out in its argument, there have been a limited number of
    Crown appeals from absolute discharges issued by the Review Board. The
    challenged section only operates when a Crown appeals from a disposition of
    absolute discharge by the Review Board.  Therefore, it is not entirely clear
    when another opportunity will present itself for an NCR accused to bring this
    constitutional challenge.

[28]

Fourth,
    the court has had the benefit in this case of able arguments on both sides of
    the issue.

[29]

Finally,
    it is preferable for the court to exercise its discretion to address the issue,
    rather than have the Superior Court of Justice do so in response to a stand
    alone application.   The issue arose in the course of an appeal to this court
    and would have to be decided here were it not moot.  The
Code
stipulates
    that appeals from Review Board decisions are to be made to this court. It is an
    issue affecting a proceeding in this court and is appropriately decided by this
    court.

[30]

We
    therefore conclude that we have jurisdiction to proceed and should exercise the
    courts discretion to adjudicate the issue raised by the motion.

(2)

Constitutional issue

[31]

The
    constitutional issue in this case relates to the rights of an NCR accused in
    the interim period between his absolute discharge by the Review Board and the
    determination of a Crown or hospitals appeal from such a discharge.  Before
    addressing the specific constitutional issues advanced by
amicus
, we
    want to discuss, briefly, two contextual points to provide a framework for the
    constitutional analysis that will follow: (a) an overview of Part XX.1 of the
Criminal
    Code
; and (b) a description of the role of the Review Board in the
    operation of Part XX.1 of the
Code
.

(a)
Part XX.1
    of the
Criminal Code
: Mental Disorders

[32]

An
    impugned legislative provision must be analysed in the context of the
    legislative scheme within which it is contained:
Canada (Attorney General)
    v. PHS Community Services Society
, 2011 SCC 44, [2011] 3 S.C.R. 143, at
    para. 109. Section 672.75 is found within Part XX.1 of the
Criminal Code
,
    the part dealing with mental disorders.  An examination of the history of this
    part of the
Code
is helpful in assessing the constitutionality of the
    impugned provision.

[33]

Prior
    to the enactment of Part XX.1, an accused who was successful in establishing
    what was then called the insanity defence, was subject to detention that
    would only end at the pleasure of the Lieutenant Governor.  In
R. v.
    Swain
, [1991] 1 S.C.R.  933, the Supreme Court of Canada held that
    the previous regime was unconstitutional because it allowed for the automatic
    and indefinite detention of an NCR accused, in violation of the NCR accuseds
    s. 7 liberty rights. It was in response to
Swain
that Parliament
    introduced Part XX.1 of the
Criminal Code
in 1991:
An Act to amend
    the Criminal Code (mental disorder) and to amend the National Defence Act and
    the Young Offenders Act in consequence thereof
, S.C. 1991, c. 43
.

[34]

As
    enacted, Part XX.1 reflects an entirely new approach to dealing with NCR
    accused based on a growing appreciation that punishment should not only fit the
    offence, it should also fit the offender.  The Supreme Court of Canada affirmed
    the constitutionality of the main operative sections of Part XX.1 in
Winko
    v. British Columbia Forensic Psychiatric Institute
, [1999] 2 S.C.R. 625.
    In
Winko
, at para. 21, McLachlin J. described Part XX.1 in the
    following terms:

Part XX.1 rejects the notion that
    the only alternatives for mentally ill people charged with an offence are
    conviction or acquittal; it proposes a third alternative.  Under the new
    scheme, once an accused person is found to have committed a crime while
    suffering from a mental disorder that deprived him or her of the ability to
    understand the nature of the act or that it was wrong, that individual is diverted
    into a special stream.  Thereafter, the court or a Review Board conducts a
    hearing to decide whether the person should be kept in a secure institution,
    released on conditions, or unconditionally discharged.  The emphasis is on
    achieving the twin goals of protecting the public and treating the mentally ill
    offender fairly and appropriately.

[35]

The
    enactment of Part XX.1 has meant that the criminal justice system now contains
    two streams for persons convicted of committing crimes: the traditional stream
    for a non-NCR accused that typically involves incarceration and aims at
    denunciation of the crime, retribution for the crimes victims and
    rehabilitation of the accused; and the alternative stream for an NCR accused
    which involves therapeutic detention that provides the NCR accused treatment
    while protecting the public.

[36]

The
    major difference between the two streams is evidenced by the rationale for the
    time spent in detention.  In the traditional system, the sentence is intended
    to be proportional to the crime committed.  In the NCR stream, the detention of
    the NCR accused does not correlate with the underlying offence.   Rather, the
    regime is aimed at providing therapy for the NCR accused until he or she can
    longer be said to pose significant threats to the public.

[37]

In
    the result, an NCR accused may be detained in a hospital for years based on a
    charge as trivial as shoplifting, while another NCR accused may be released
    within months on a charge as serious as homicide.  In both cases, the main
    determining factor is the state of each accused at the time of discharge, and
    not the crime that formed the basis for the original charge.

[38]

In
Winko
, the NCR accused argued that his s. 15
Charter
rights
    were infringed because of the longer detention he potentially faced as compared
    to a non-NCR accused convicted of the same crime.  McLachlin J. rejected this
    argument, stressing the importance of the distinction between the two streams
    of the criminal justice system. She stated, at para. 93:

In asserting that NCR accused must
    be treated the same as criminally responsible offenders who commit the same
    criminal act, the appellants assume that the infringement of their liberty is
    meant to serve the same function that it does for those found guilty of
    criminal offences.  As I noted, this is mistaken.
Any
    restrictions on the liberty of NCR accused are imposed for essentially
    rehabilitative and not penal purposes
.  In the words of Taylor J.A.,
    unlike the sanctions faced by a convicted person, the scheme that addresses NCR
    accused exacts no penalty, imposes no punishment and casts no blame:
Blackman
    v. British Columbia (Review Board)
(1995), 95 C.C.C. (3d) 412 (B.C.C.A.),
    at p. 433.  Accordingly, a formalistic comparison of the sentences
    imposed on these two types of individuals belies a purposive understanding of
    the statutory provisions in issue.  [Emphasis added].

[39]

To
    repeat, the length of detention of an NCR accused only depends on whether he or
    she continues to pose a significant risk to the public.  As the Supreme Court
    of Canada noted in
Swain
, at p. 1008: As the individual becomes
    less of a threat to society, the criminal law progressively loses
    authority.

[40]

Parliaments
    alternative regime, under Part XX.1, which is specifically tailored to deal
    with NCR accused, functions in the following way: once a judge or jury enters a
    verdict of not criminally responsible on account of mental disorder, the
    person found NCR becomes subject to this alternative regime.  The court may
    then hold a disposition hearing: s. 672.45(1). If the court does not
    make a disposition, a hearing is held by the Review Board, which was
    established under s. 672.38.  The Review Board is mandated to conduct an
    initial review hearing to determine whether to detain, discharge on certain
    conditions, or absolutely discharge the accused: s. 672.54.  If the NCR accused
    is not absolutely discharged, the Review Board is further mandated to hold a
    hearing to review its decision on, at least, an annual basis: s. 672.81(1).

(b)
Role of
    the Review Board

[41]

Review
    boards play a central role in the regime established under Part XX.1 of the
Code
.
     These boards are tasked with evaluating all relevant factors on an ongoing
    basis to assess whether the NCR accused poses a significant threat to the
    safety of the public.  They are specialized tribunals with expert membership
    and extensive powers.  Review boards may,
inter alia
, use all the
    powers conferred on a commissioner by ss. 4 and 5 of the
Inquiries Act
,
    R.S.C., 1985, c. I-11, compel the attendance of witnesses and issue warrants of
    committal: ss. 672.43, 672.5 and 672.57.  Referring to review boards in
R.
    v. Owen
, [2003] 1 S.C.R. 779, at para. 29, Binnie J. stated:

To make these difficult assessments
    of mental disorders and attendant safety risks, the Board is provided with
    expert membership and broad inquisitorial powers.  While the chairperson is to
    be a federally appointed judge, or someone qualified for such an appointment,
    at least one of the minimum of five members must be a qualified psychiatrist. If
    only one member is so qualified, at least one other member must have training
    and experience in the field of mental health, and be entitled to practise medicine
    or psychology.

[42]

McLachlin
    J. summarized the conduct of hearings before review boards succinctly in
Winko
,
    at para. 54:

The Crown may often not be present
    at the hearing.  The NCR accused, while present and entitled to counsel,
    is assigned no burden.  The system is inquisitorial.  It places the
    burden of reviewing
all
relevant evidence on both sides of the case on
    the court or Review Board.  The court or Review Board has a duty not only
    to search out and consider evidence favouring restricting NCR accused, but also
    to search out and consider evidence favouring his or her absolute discharge or
    release subject to the minimal necessary restraints ...  The legal and
    evidentiary burden of establishing that the NCR accused poses a significant
    threat to public safety and thereby justifying a restrictive disposition always
    remains with the court or Review Board. [Emphasis in original.]

[43]

The
    specialized nature of the Review Board combined with its broad inquisitorial
    powers and expertise has meant that appellate courts are compelled to defer to
    its decisions.  As McLachlin J. went on to state in
Winko
, at para. 61:

It follows that the inquiries conducted
    by the court or Review Board are necessarily broad.  They will closely
    examine a range of evidence, including but not limited to the circumstances of
    the original offence, the past and expected course of the NCR accuseds
    treatment if any, the present state of the NCR accuseds medical condition, the
    NCR accuseds own plans for the future, the support services existing for the
    NCR accused in the community and, perhaps most importantly, the recommendations
    provided by experts who have examined the NCR accused.  The broad range of
    evidence that the court or the Review Board may properly consider is aimed at
    ensuring that they are able to make the difficult yet critically important
    assessment of whether the NCR accused poses a significant threat to public
    safety ...
Appellate courts reviewing the dispositions made by a court or
    Review Board should bear in mind the broad range of these inquiries, the
    familiarity with the situation of the specific NCR accused that the lower
    tribunals possess, and the difficulty of assessing whether a given individual
    poses a significant threat to public safety
.  [Emphasis added.]

[44]

In
    sum, a decision by a Review Board to absolutely discharge an NCR accused is not
    one to be interfered with lightly.

Section 672.75 of the
    Criminal Code  The Impugned Section

[45]

Section
    672.75 of the
Criminal Code
states:

The filing of a notice of appeal against a
    disposition made under paragraph 672.54(a) or section 672.58 suspends the
    application of the disposition pending the determination of the appeal.

[46]

The
    automatic suspension of a disposition upon the filing of a notice of appeal
    occurs in two situations under s. 672.75: (1) where the appeal is from a Review
    Board decision to absolutely discharge an NCR accused (s. 672.54(1)); or (2)
    where the appeal is from a court order mandating an accused found to be unfit
    for trial to undergo treatment (s.
672.58)
.  In the first situation,
    the filing of the appeal is by the Crown or concerned hospital.  In the latter
    situation, it is usually the NCR accused who appeals against the mandatory
    treatment order.  The case at bar concerns the first situation.

[47]

The
    effect of a suspension of the application of an order of absolute discharge is
    explained in s. 672.77:

Where the application of a disposition or placement
    decision appealed from is suspended, a disposition, or in the absence of a
    disposition any order for the interim release or detention of the accused, that
    was in effect immediately before the disposition or placement decision appealed
    from took effect, shall be in force pending the determination of the appeal,
    subject to any disposition made under paragraph 672.76(2)(
c
).

[48]

Finally,
    an NCR accused who is returned to the conditions that were in effect
    immediately before the [absolute discharge] disposition does have the ability
    to appeal this suspension of his discharge.  It is open to an NCR accused to
    make an application under s. 672.76 to a judge of this court, upon giving
    notice to all parties involved.  The judge may then if satisfied that the
    mental condition of the accused justifies it, order that the Review Boards
    disposition be carried out pending the determination of the appeal.

Section 7 of the Charter

[49]

Section
    7 of the
Charter
states:

Everyone has the right to life, liberty and security
    of the person and the right not to be deprived thereof except in accordance
    with the principles of fundamental justice.

[50]

An
    applicant alleging a breach of s. 7 must demonstrate on the balance of probabilities
    that the challenged legislation interferes with, or limits, the applicants
    right to life, or the right to liberty, or the right to security of the person,
    and that the interference or limitation is not in accordance with the
    principles of fundamental justice.

[51]

The meaning of the phrase principles of fundamental justice has
    developed through judicial interpretation:
Re B.C. Motor Vehicle Act
, [1985] 2 S.C.R. 486
, at pp. 511-513;
Cunningham
    v. Canada
, [1993] 2 S.C.R. 143
, at
    pp. 151-152; and
P.W. Hogg,
Constitutional
    Law of Canada
, 5th ed., looseleaf (Toronto:
    Carswell,

1996),
at para. 47.33.
    Courts have, over time, identified those principles that are fundamental to our
    notion of justice in Canada  the tenets of our legal system.

Deprivation of Liberty

[52]

Amicus
argues that s. 672.75 infringes an NCR accuseds s. 7 liberty interests by
    mandating that an NCR accused who was absolutely discharged by a Review Board
    revert to the conditions that applied the day before the absolute discharge
    order.  This may entail either reverting to a conditional discharge or being
    again detained in a hospital.  In either case, the NCR accuseds liberty rights
    are infringed.

[53]

The
    respondent Crown concedes that an NCR accuseds s.7 right to liberty is infringed
    by s. 672.75.  However, the Crown argues that any such infringement is
    tempered by the fact that the liberty deprivation will rarely result in a
    complete restriction on the NCR accuseds liberty.  As in this case, the NCR
    accused will go back to the least onerous, least restrictive disposition that
    preceded the discharge, the more likely outcome being a return to a conditional
    discharge.

[54]

The
    Crown properly concedes that s. 672.75 breaches an NCR accuseds liberty right
    under s. 7 of the
Charter
.  However, the tempering effect noted by
    the Crown does not diminish the s. 7 infringement.  The possibility of an NCR
    accused being returned to full detention at a hospital as a result of the
    application of s. 672.75 still exists.  In addition, being released into the
    community with conditions can still impose restrictions on an NCR accuseds
    liberty rights.  These conditions can be onerous, for example, by requiring, as
    in Dr. Kobzars case, weekly hospital-reporting requirements and a prohibition
    on leaving the province.

Principles of Fundamental
    Justice

[55]

Legislation
    that limits the right to liberty of the person will attract s. 7
    scrutiny.  It will, however, survive that scrutiny and be upheld as
    constitutional unless it is shown to be contrary to the principles of
    fundamental justice.
Amicus
in this case claims that s. 672.75 is
    contrary to three principles of fundamental justice because the resulting
    deprivation: (1) occurs without due process; (2) depends on a presumption of
    dangerousness; and (3) is overbroad.

[56]

We
    agree that s. 672.75 is not in accordance with the fundamental principle of
    justice of due process.  We need not comment on the other claimed grounds.

Due Process

[57]

The
    state cannot detain people for significant periods of time without providing
    them with a fair procedural process.  The impugned section violates the
    fundamental principle of justice that no person shall lose his or her liberty
    without due process according to the law, which must involve a meaningful
    judicial process:
Charkaoui v. Canada (Citizenship and Immigration)
,
    2007 SCC 9, [2007] 1 S.C.R. 350, at para. 28, citing
United States of
    America v. Ferras
, [2006] 2 S.C.R. 77, at para. 19.  An NCR accused, under
    the impugned provision, is afforded no procedural safeguards before the automatic
    suspension of the absolute discharge order takes effect.

[58]

The
    impugned section is notably similar to the section of the
Criminal Code
that
    was struck down by the Supreme Court of Canada in
Swain
.  In that
    case, s. 542(2) of the
Code
required a trial judge, following a
    verdict of not guilty by reason of insanity, to automatically order the accused
    into strict custody until the pleasure of the lieutenant governor of the
    province is known.  The court determined that the provision violated s. 7 of
    the
Charter
because it resulted in an automatic deprivation of liberty
    without a hearing or any other procedural safeguard.  Section 672.75 similarly
    causes an NCR accused to be
automatically
subjected to restrictions on his liberty upon the filing of a notice of appeal
    by the Crown or concerned hospital.

[59]

Whereas
    in
Swain
the deprivation of liberty was brought about at the time the
    NCR accused was found not guilty by reason of insanity, s. 672.75 brings about
    the automatic deprivation of liberty after

the NCR accused is
    absolutely discharged by a Review Board.

[60]

The
    Crown, in response, argues that the impugned section accords with the
    principles of fundamental justice.  Unlike in
Swain
, recourse from the
    suspension pending appeal is available by way of interim review under s.
    672.76.  The Crown contends that the onus on an NCR accused to initiate this
    interim review is not onerous.

[61]

We
    do not accept this submission.  The Supreme Court of Canada rejected a similar
    argument in
Swain
, at p. 1011:

While I accept that the statutory
    scheme in question must be looked at in its entirety, I respectfully disagree
    with the majority position in the Court of Appeal that although s. 542(2) alone
    may infringe s. 7, the procedural requirements are met by ss. 545 and
    547.  Assuming, without deciding, that those subsequent provisions
    themselves accord with the principles of fundamental justice,
any
    subsequent hearings or review cannot change the fact that the initial remand is
    ordered by the trial judge without any opportunity for a hearing
.
    [Emphasis added.]

[62]

Similarly
    in this case, any subsequent right of the accused to apply for a review of the
    automatic suspension cannot cure s. 672.75s constitutional deficiency.  A
    subsequent review, especially one that places the onus on the accused, does not
    change the fact that the initial restriction of the NCR accuseds liberty is
    automatic upon the completion of an administrative act, without any due
    process.

[63]

The
    Crown also argues that when an absolute discharge is under appeal, the issue of
    whether an NCR accused presents a significant threat to society remains in
    dispute.  At the oral hearing, this argument was supplemented with a detailed
    review of all appeals from absolute discharges filed by the Crown since 1994.
    In total, the Crown filed 14 appeals from absolute discharges; eight of these
    appeals were allowed by this court, two were abandoned by the Crown and two
    were dismissed by this court (including the underlying appeal in Dr. Kobzars
    case).  The Crowns argument is, therefore, that it has used its powers under
    s. 672.75 sparingly, and that, in the times that it has chosen to use its
    powers, its position has been generally vindicated by this court.

[64]

We
    do not accept either argument.  The decisions of a Review Board to absolutely
    discharge are final decisions that determine the issue of whether an NCR
    accused poses a significant threat to the public.  These decisions are owed
    substantial deference by appellate courts.  The mere availability of an appeal
    process from these decisions does not mean that the determination of the Review
    Board remains in dispute.

[65]

This
    is not to say that the decisions of a Review Board are of scientific precision.
     As McLachlin J. noted in
Winko
, at para. 59, it is simply unrealistic
    to expect absolute certainty from a decision of a Review Board:

Parliament has created a system of specialized Review Boards
    charged with sensitively evaluating all the relevant factors on an ongoing
    basis and making, as best it can, an assessment of whether the NCR accused
    poses a significant threat to the safety of the public.  This assessment
    is not a guarantee, but it is unrealistic to expect absolute certainty from a regime
    charged with evaluating the impact of individual, human factors on future
    events.  As La Forest J. wrote in
R. v. Lyons
, [1987] 2 S.C.R.
    309, at p. 364, in the context of the dangerous offender provisions of the
    Code:

. . . the life of the law has not been logic:  it has
    been experience.  The criminal law must operate in a world governed by
    practical considerations rather than abstract logic and, as a matter of
    practicality, the most that can be established in a future context is a likelihood
    of certain events occurring.

[66]

However,
    the potential fallibility of a Review Boards decision does not mean that it is
    justifiable to infringe the
Charter
rights of an NCR accused on the
    off chance that the decision is incorrect.  Rather, it should be incumbent on
    the Crown to bring an application before an impartial body in cases where it
    believes that the Review Boards decision to absolutely discharge was in
    error.  The onus on any such application must be on the Crown.

[67]

The
    success rate of the Crown in these appeals is also of no moment.  The
    constitutional validity of a statutory provision cannot turn on the success or
    failure rates in similar proceedings.

[68]

The
    Crown also argues that any infringement of the liberty of an NCR accused by s.
    672.75 is of short duration.  Specifically, ss. 672.72(2) and (3) of the
Code

and the
Criminal Appeal Rules

39(2) and 43(3) safeguard
    against an indefinite suspension of an absolute discharge by mandating that
    Part XX.1 appeals be expedited and imposing stricter timelines for Part XX.1
    appeals than what is in place for other criminal appeals.

[69]

The
    finite period of the liberty infringement does not save s. 672.75.  The Crowns
    own materials show that the duration of a suspension of an absolute discharge
    i.e. the time between the Crowns filing of a notice of appeal and the hearing
    of the appeal  ranges from a few months to a year.  In Dr. Kobzars case, the
    suspension lasted a little over eight months.  This duration of time is by no
    means short.

[70]

However,
    even if the duration of the suspension were shorter, the constitutional
    deficiency would still remain.  This is because the deficiency is not in the
    duration of the infringement.  Rather, it is in the lack of due process in
    initiating the restriction of the NCR accuseds
Charter

protected
    liberty rights to begin with. Therefore, the constitutional infringement
    brought about by s. 672.75 cannot be justified on the basis that it is short in
    duration.

[71]

We
    conclude this discussion of the lack of due process under s. 672.75 with a
    quote from Lamer C.J. in
Swain
, at
    p. 1009,

that is equally applicable in this case:

The automatic detention required
    under s. 542(2) clearly deprives the appellant of his right to liberty.
    However, if this deprivation is in accordance with the principles of
    fundamental justice, there will be no limitation of his rights under s. 7 of
    the Charter.  As was stated in
Re B.C. Motor Vehicle Act
,
supra
,
    at pp. 503-4, the principles of fundamental justice, while not limited to
    "natural justice", require at least those procedural
    safeguards.
Because s. 542(2) provides for no hearing or other
    procedural safeguards whatsoever, I need not proceed any further to conclude
    that the deprivation of liberty is not in accordance with the principles of
    fundamental justice
. [Emphasis added.]

[72]

Finally,
    the Crowns submission that the issue of whether an NCR accused presents a
    significant threat to society remains in dispute once the Crown or concerned
    hospital files an appeal merits further comment.  This submission presumes that
    an NCR accused is dangerous until proven otherwise.  However, in
Winko
the
    Supreme Court of Canada held precisely the opposite: Part XX.1 of the
Code
is
    constitutional only because it does not, at any point, presume that an NCR
    accused is dangerous.

[73]

Section
    672.54 empowers the Review Board to determine whether an NCR accused is to be
    detained in a hospital, released to the community with conditions or absolutely
    discharged.  If an NCR accused is not to be presumed dangerous before his
    review hearing, then it cannot stand to reason that he should be presumed
    dangerous after the Review Board determines that he does not pose a significant
    threat to the public and orders him absolutely discharged.  McLachlin J. expressed
    it in this fashion in
Winko
, at para. 95:

I acknowledge that if s. 672.54
    were read as raising a presumption of dangerousness and as permitting courts
    and Review Boards to restrict the liberty of the NCR accused in the absence of
    a considered conclusion that he or she posed a significant threat to the safety
    of the public, as may regrettably sometimes have happened in the past, one
    could argue that it would serve to disadvantage NCR offenders in a discriminatory
    manner.  Applied as suggested in these reasons, however, s. 672.54 serves
    to ensure that each NCR accused is treated appropriately, having regard to his
    or her particular situation and in a way that is minimally onerous and
    restrictive.  All of this promotes the view that, whatever may have been
    the situation in the past, s. 672.54 recognizes that NCR accused are equally
    deserving of the laws concern, respect and consideration.

[74]

McLachlin
    J.s words in
Winko
, at para. 16, with regard to s. 672.54 are equally
    applicable to s. 672.75: The history, purpose and wording of s. 672.54 of the
Code
indicate that Parliament did not intend NCR accused to carry the burden of
    disproving dangerousness.  With that in mind, it is clear that the Crowns
    submission that the issue of whether an NCR accused is a significant threat to
    the safety of the public remains in dispute after a Review Board orders him
    absolutely discharged is not persuasive.

Section 9 of the
Charter

[75]

Section
    9 of the
Charter
provides:

Everyone has the right not to be arbitrarily detained
    or imprisoned.

[76]

In
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44,

the
    Supreme Court of Canada defined detention for the purposes of s. 9 in the
    following terms:

Detention under ss. 9 and 10 of the
Charter
refer to a suspension of the individuals liberty interest by a
    significant physical or psychological restraint. Psychological detention is
    established either where the individual has a legal obligation to comply with
    the restrictive request or demand, or a reasonable person would conclude by
    reason of the state conduct that he or she had no choice but to comply.

[77]

Amicus
argues that s. 672.75 violates s. 9 of the
Charter
by mandating a
    loss of liberty without any consideration of rational criteria or standards.  Section
    672.5 is triggered by filing a notice of appeal.  As in
Swain
, the
    duty to detain is unqualified by standards whatsoever.  The suspension of the
    absolute discharge is made without consideration of: (1) the merits of the
    appeal; (2) the mental condition of the accused; and (3) whether the accused
    poses any risk to the safety of the public.  The total absence of criteria
    renders the law arbitrary.

[78]

The
    Crown argues that s. 672.76 specifically provides a review mechanism that
    covers s. 672.75 and the appeal process forces the assessment in question to be
    addressed.  In this way, s. 672.75 is not unqualified by standards nor does it
    amount to unfettered discretion.  In addition, s. 672.75 relates directly to
    the paramount objective of Part XX.1 of the
Criminal Code
, namely the
    protection of the public view of an NCR accuseds possible dangerousness.

[79]

We
    do not accept this argument.  We have already dealt with the inadequacy of s.
    672.76 to cure the impugned sections constitutional deficiency and with the
    error in presuming that an NCR accused poses any danger.  We would add that the
    Crown misinterprets the legislative goals behind Part XX.1 of the
Code
.
    In
Winko
, at paras. 21-22, McLachlin J. stated the following about the
    legislative objectives of Part XX.1 of the
Code
:

The emphasis is on achieving the twin goals of protecting the
    public and treating the mentally ill offender fairly and appropriately.

Daniel Préfontaine, then an Assistant Deputy Minister at the
    Department of Justice, summarized the objectives of Part XX.1 before the
    Standing Committee on Justice and the Solicitor General:

The legislative proposals continue the long-standing
    objective of protecting the public from presently dangerous people who have
    committed offences, and the long-standing principle of fundamental fairness we
    have had in our laws that we do not convict people who are incapable of knowing
    what they are doing.

The aim of the bill is twofold: to improve protection for
    society against those few mentally disordered accused who are dangerous; and to
    recognize that mentally disordered offenders need due process, fundamental
    fairness and need the rights accorded to them for their protection when they
    come into conflict with the criminal law.

(House of Commons, Minutes of
    Proceedings and Evidence of the Standing Committee on Justice and the Solicitor
    General, Issue No. 7, October 9, 1991, at p. 6.)

[80]

The
    Crowns understanding of the legislative objective as one that is intended to
    protect the public from an NCR accuseds possible dangerousness completely
    overlooks the dual objective of the legislation.

[81]

Finally,
    having found that s. 672.75 violates an accuseds s. 7 liberty rights as
    infringing on the procedural fairness principle of fundamental justice, it
    follows that we agree with
amicus
that s. 672.75 violates s. 9 of the
Charter
.
    In coming to this conclusion, we can do no better than refer to the reasons of
    Lamer C.J. in
Swain
, at pp. 1011-1012:

It is the position of the appellant that his arguments with
    respect to s. 9 also apply to the substantive (as opposed to procedural)
    aspects of s. 7.  Since s. 9 is illustrative of s. 7, and since the
    central point of the substantive s. 7 arguments in this case is that the
    detention is ordered on the basis of no criteria (i.e., arbitrary detention), a
    discussion of s. 9 is sufficient and I will proceed with that forthwith.

...

The detention order is automatic,
    without any rational standard for determining which individual insanity
    acquittees should be detained and which should be released.  I need not
    determine at this point what standard would be required by s. 9 in order to
    detain an insanity acquittee.  The duty of the trial judge to detain is
    unqualified by any standards whatsoever.  I cannot imagine a detention
    being ordered on a more arbitrary basis.

Conclusion

[82]

For
    these reasons, we conclude that the words paragraph 672.54(a) in s. 672.75 of
    the
Criminal Code
violate ss. 7 and 9 of the
Charter
.

(3)

Section 1 of the
Charter

[83]

Section
    1 of the
Charter
provides:

The
Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such
    reasonable limits prescribed by law as can be demonstrably justified in a free
    and democratic society.

[84]

The
    Crown contends that s. 672.75 is rationally connected to the pressing and substantial
    objective of protection of the public in that it provides an automatic
    safeguard where the threat posed by an NCR accused remains in dispute.  The
    review mechanism under s. 672.76, when initiated by an NCR accused, satisfies
    the requirement that the NCR accuseds liberty right be only minimally
    impaired.

[85]

We
    do not agree with this submission.  We begin by observing that while a
    violation of s. 7 can theoretically be justified under s. 1 of the
Charter
,
    in reality s. 1 will rarely, if ever, trump a s. 7 infringement:
R. v. D.B.
,
    2008 SCC 25, [2008] 2 S.C.R. 3, at para. 89.

[86]

In
    any event, the limitation on an NCR accuseds liberty established in s. 672.75
    of the
Criminal Code
is not minimally impairing.  The suspension is
    automatic and applies to all NCR accused without any consideration of whether
    they pose a risk to the safety of the public.  The NCR accuseds only recourse,
    after the deprivation of liberty has already occurred, is to make an
    application and attempt to satisfy a judge that his or her mental condition
    justifies ordering that the absolute discharge be carried out.

[87]

A
    simple comparison with the provision immediately following s. 672.75
    demonstrates that it is not minimally impairing.  Pursuant to s. 672.76(2)(b),
    the liberty interests of an NCR accused who is given a disposition other than
    an absolute discharge will only be restricted pending appeal where an
    application is made to a judge who must be satisfied by the moving party (the
    Crown or hospital) that the restriction is justified having regard to the NCR
    accuseds mental condition.  It is difficult to understand why the mechanism
    established in s. 672.76 could not be applied equally to NCR accused who obtains
    an absolute discharge order from a Review Board.  In the absence of such
    parallel treatment, it cannot be said that the words in paragraph 672.54(a)
    in s. 672.75 of the
Criminal Code
impair the right to liberty as
    little as possible.

(4)

Remedy

[88]

This
    is not an appropriate case for this court to read in procedural safeguards to
    render s. 672.75 compliant with constitutional requirements.  The Supreme Court
    of Canada was of the same opinion in
Swain
.  Lamer C.J., at p. 1011,
    stated it in the following terms:

[The] order of "strict
    custody" is thus automatically made immediately following the trial and
    before any hearing on the issue of current mental state.  Even attempting
    to interpret s. 542(2) within the bounds of the Constitution, it is impossible
    to conclude that Parliament did not intend to authorize such conduct on the part
    of the trial judge.  Because the wording of s. 542(2) is precise and
    requires the trial judge to order the insanity acquittee into strict custody
    immediately following the trial, this is not a situation in which this Court
    can simply "read in" procedural safeguards to make the legislation
    accord with constitutional requirements.

[89]

The
    Attorney General of Canada submits that the appropriate remedy if we find a
    constitutional violation is to declare the reference to paragraph 672.54(a)
    in s. 672.75 to be of no force and effect pursuant to s. 52(1) of the
Constitution
    Act, 1982
, being Schedule B to the
Canada
    Act 1982
(U.K.), 1982, c.11,
and to suspend the declaration of constitutional invalidity for 12 months.

[90]

We
    agree with this submission and with the suspension of the declaration for 12
    months.  The 12 month suspension will allow, among other things, Parliament to
    deal with any concern that there is no process to permit the Crown to seek
    restrictions pending appeal on the liberty of an NCR accused who has been
    absolutely discharged.

E.

DISPOSITION

[91]

The
    application is allowed.  The words paragraph 672.54(a) in s. 672.75 of the
Criminal
    Code
violate ss. 7 and 9 of the
Charter
and are not saved by s. 1
    of the
Charter
.  These words are declared to be of no force and effect
    pursuant to s. 52(1) of the
Constitution Act, 1982
.  This declaration
    is suspended for 12 months from the date of release of this judgment.

S.T.
    Goudge J.A.

J.C.
    MacPherson J.A.

Juriansz J.A. (Dissenting):

[92]

I
    appreciate the approach of my colleagues in entertaining the constitutional
    question raised by the respondent
s notice of motion
.
    Certainly, wherever possible, the courts should minimize procedural
    technicality in order to decide the substance of disputes quickly and
    efficiently. That approach, however, does not allow a court to stray outside
    the limits of its jurisdiction. A courts jurisdiction is fundamental in
    constitutional matters. In exercising their authority to declare that
    Parliament has acted unconstitutionally, the courts are themselves subject to
    the principle that all institutions are governed by law. The rule of law is
    undermined if declarations that laws enacted by Parliament are unconstitutional
    are grounded on questionable jurisdiction.

[93]

The
    motion challenging the constitutionality of s. 672.75 of the
Criminal Code
is
    not properly before this court. This court lacks jurisdiction to deal with it.

[94]

My
    colleagues proceed on the basis that this court has discretion to adjudicate
    the respondents motion even though it was rendered moot by the courts
    disposition of the appeal on February 29, 2012. Relying on
Borowski v.
    Canada (Attorney General)
, [1989] 1 S.C.R. 342, they purport to exercise
    the courts discretion to decide a moot constitutional issue. As I see it, the
    difficulty is not that the respondents motion was rendered moot, but that the
    court never had jurisdiction to rule on the motion in the first place.
Borowski
is not applicable because it guides the discretion of the court that has
    jurisdiction over the moot question.

[95]

I
    accept that this court may hear and determine at first instance a
    constitutional question that arises in the chain of reasoning necessary to
    determine a matter before it. In this case, as
amicus
readily
    acknowledged in oral argument, the motion raises a constitutional question
    irrelevant to the determination of the appeal before this court. The Attorney
    Generals appeal raised the question whether the ORB had erred by granting the
    respondent an absolute discharge. Whether the statutory reversion of Mr.
    Kobzars status to conditional discharge pending appeal infringed his
    constitutional rights has nothing to do with that question. The constitutional
    challenge, brought as an interlocutory motion in the Attorney Generals appeal,
    is concerned only with damage Mr. Kobzar is alleged to have suffered after the
    notice of appeal was filed. Whether s. 672.75 is or is not constitutional could
    not, and did not, affect this courts determination of the merits of the
    appeal.

[96]

Amicus
relied on this courts decision in
R. v. Farinacci
, 109 D.L.R.
    (4th) 97 to support his claim that he could raise a constitutional challenge in
    this court in the first instance.
Amicus
points out that in
Farinacci
this court entertained a constitutional challenge to a provision of the
Criminal
    Code
as a matter of first instance.

[97]

Farinacci
is an
entirely different
    case. In
Farinacci
, the
    constitutional question was one that arose in this courts determination of the
    matter before it. The
question before the court was whether Mr.
    Farinacci should be released from detention pending appeal. He challenged the
    constitutionality of s. 679(3)(c) of the
Criminal Code
, which permits
    denial of bail pending appeal on the ground of public interest. His
    constitutional challenge was plainly and directly connected to the
    determination of his application for bail pending appeal. By contrast, Mr.
    Kobzars motion raises an independent constitutional question that is
    completely unconnected to the legal issues of the appeal in which he is respondent.
Farinacci
is not authority for the proposition that a motion can be
    filed in the Court of Appeal challenging at first instance the
    constitutionality of a statutory provision when the challenge does not arise
    out of the legal issue on appeal.

[98]

Amicus
submitted that if he had brought an application before a single judge of the Court
    of Appeal for an order under s. 672.76(2)(a), that single judge would have
    referred the important question raised by the motion to a panel, just as Dubin
    C.J.O. did in
Farinacci
, and we would have ended up here. Section 672.76(2)(a)
    permits a judge of the court of appeal, on application, to order that the
    disposition of a Review Board granting an absolute discharge be carried out
    pending the determination of the appeal, notwithstanding section 672.75.

[99]

Amicus

    submission in favour of practicality does recognize that Dubin C.J.O.s
    direction in
Farinacci
that a panel hear the matter was made pursuant
    to s. 680(1). Section 680(1) provides that a review by a panel of a denial of
    bail pending appeal by a single judge may take place only upon the direction of
    the Chief Justice of the Court of Appeal. Mr. Farinacci had applied to the
    Chief Justice pursuant to s. 680(1) after a single judge had refused his
    application for bail pending appeal. In
Farinacci
, there was a clear
    statutory basis for the procedure followed. Here there is no provision
    equivalent to s. 680(1).

[100]

Even assuming
    that
the jurisdiction of a single judge under

s. 672.76(2)(a) could
    be exercised by a panel, two difficulties remain. First, there is no
    application for an order under s. 672.76(2)(a) before the panel. Second, the
    constitutionality of s. 672.75 could never arise on an application for an order
    under s. 672.76(2)(a) because an order under s. 672.76(2)(a) is made
    notwithstanding section 672.75. Thus the court would never have to consider
    the constitutionality of s. 672.75 in order to make an order under s.
    672.76(2)(a). Hence, treating the respondents motion as one properly made to
    the Court of Appeal seeking an order under s. 672.76(2)(a) does not give this
    court jurisdiction to deal with the constitutional question.

[101]

The respondents motion is, in both form and
    substance, a free-standing motion challenging a statutory enactment of
    Parliament brought in the Court of Appeal at first instance.
Amicus
recognizes that he could have brought an application for a writ of
habeas
    corpus
or a free-standing
Charter
application in the Superior
    Court. He explained that he did not commence a proceeding in the Superior Court
    because appeals of orders of the Review Board and the status of a person found
    not criminally responsible pending appeal are exclusively the concern of the Court
    of Appeal. He submits that the Superior Court would have little interest and
    little insight in the operation of Part XX.1 of the
Criminal Code
.
    Moreover, the motion did not require an evidentiary record to be assessed and
    weighed by a fact finder. Finally, he considered that the constitutional
    challenge would likely become moot when the appeal was decided and so wanted to
    have the challenge heard with the appeal. These considerations, even if they
    were sound, do not give this court jurisdiction.

[102]

The essence of
amicus

position seems to be that this
    panel should hear the respondents motion as a matter of convenience. It would
    be convenient for the panel already scheduled to hear the Attorney Generals
    appeal of the Review Boards disposition to hear the constitutio
nal issue concerning Mr. Kobzars status pending appeal at
    the same time. I accept that had the constitutional challenge been brought
    before the court by any of the proper procedures, it would not have reached
    this court in time to be heard together with the Attorney Generals appeal.

[103]

Convenience,
    however, is not a source of jurisdiction. The Attorney General of Canada was
    not in court when the court heard submissions on its jurisdiction to entertain
    the motion. The Attorney General of Ontario consented to the bringing of the
    motion. However, absence of objection or consent by the parties does not give
    the court jurisdiction.

[104]

I conclude that
    this court has no jurisdiction to determine the constitutional question raised
    in the notice of motion served and filed in this appeal by the respondent. I
    would quash the motion as it is improperly before the court.

Released: May 16, 2012 (J.C.M.)

R.G. Juriansz J.A.