|
Criminal - NCR - High-Risk Accused (HRA) (2). R. v. Gautreau
In R. v. Gautreau (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal NCR appeal, this brought against the trial judge finding "the appellant to be a high risk accused (“HRA”), under s. 672.64 of the Criminal Code.".
Here the court extensively considered the CCC NCR category of 'high-risk accused':[2] The trial judge also found the appellant to be a high risk accused (“HRA”), under s. 672.64 of the Criminal Code. A HRA finding triggers significant liberty consequences. A HRA must be ordered detained in a hospital under s. 672.54(c), with strict limitations on community access. The appellant appeals this finding. He submits that the process that resulted in the finding was unfair, the finding was predicated on an erroneous interpretation of s. 672.64, and the finding was unreasonable.
....
(1) A High-Risk Accused
[21] The HRA concept was introduced into the Criminal Code in 2014 with the enactment of the Not Criminally Responsible Reform Act, S.C. 2014, c. 6. Section 672.64(1) of the Criminal Code provides:672.64(1) 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. [Emphasis added.] [22] Section 672.64(2) outlines factors for courts to consider when conducting the HRA assessment:(2) In deciding whether to find that the accused is a high-risk accused, the court shall consider all relevant evidence, including
(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. [23] The remaining subsections of s. 672.64 explain the effects of a HRA finding:(3) 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.
(4) A decision not to find an accused to be a high-risk accused is deemed to be a disposition for the purpose of sections 672.72 to 672.78.
(5) For greater certainty, a finding that an accused is a high-risk accused is a disposition and sections 672.72 to 672.78 apply to it. [24] This court has stated that HRA findings are “exceptional in nature and should be imposed sparingly”: R. v. Hadfield, 2024 ONCA 46, 169 O.R. (3d) 622, at para. 18; R. v. Teggart, 2025 ONCA 431, at para. 7.
[25] Section 672.64 contains both fixed and flexible requirements. In terms of the former, a HRA finding may only be made with respect to an accused who was 18 years or older at the time of the offence, and it applies exclusively to those found not criminally responsible under s. 16 of the Criminal Code. It has no application to accused persons who are found unfit to stand trial. It is only available when an accused has committed a serious personal injury offence, as defined in s. 672.81(1.3): see, generally, Joan Barrett and Riun Shandler, Mental Disorder in Canadian Criminal Law (Toronto: Thomson Reuters Canada Ltd., 2024) (loose-leaf 2025-Rel. 3), at §§ 8:36-8:40.
[26] There is no question that the fixed criteria in s. 672.64(1) were met in this case. The appellant was over the age of 18, he was found NCRMD, and attempted murder is obviously a “serious personal injury offence”.
[27] This appeal focuses on the application of the disjunctive, flexible pathways to a HRA finding found in ss. 672.56(1)(a) and (b). Before designating someone to be a HRA, a judge must be:(a) ... 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) … 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. [Emphasis added.] [28] A key part of the HRA regime, and one that is relevant to the statutory interpretation issue on this appeal, is the reviewability of a HRA finding. Section 672.84 of the Criminal Code provides the Review Board with the power to refer a HRA finding to a superior court. That court may revoke the finding if it is “satisfied that there is not a substantial likelihood that the accused will use violence that could endanger of the life and safety of another person”: s. 672.84(3). This applies regardless of whether the HRA finding was made pursuant to ss. 672.56(1)(a) or (b).
[29] In terms of appellate review, ss. 672.64(4) and (5) provide that the decision of a judge whether or not to make a HRA finding is a “disposition” for the purposes of ss. 672.72 to 672.78 of the Criminal Code. Accordingly, a HRA finding may only be set aside if it is unreasonable and cannot be supported by the evidence, based on a wrong decision on a question of law, or there was a miscarriage of justice. Being a discretionary decision, a HRA finding is entitled to deference on appeal: Hadfield, at paras. 28, 40.
....
The Appropriate Level of Risk in s. 672.64 of the Criminal Code
[35] The operation of s. 672.64 must be located in the broader context of Part XX.1 of the Criminal Code. Once a case passes from a trial court to the Review Board, the Review Board’s continued jurisdiction is dependent on the individual remaining a “significant threat to the safety of the public”: s. 672.54. This provision is at the core of Part XX.1. In Winko v. B.C. (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, McLachlin C.J. wrote, at para. 49: “To repeat, absent a finding that the NCR accused represents a significant risk to the safety of the public, there can be no constitutional basis for restricting his or her liberty” (emphasis added).
[36] A “significant risk” is not a mere possibility of future harm. In R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, Doherty J.A. described what the proper standard entails, at para. 8:The meaning of the phrase “significant threat to public safety” has been authoritatively set down in [Winko]. The phrase refers to a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying. A very small risk of even grave harm will not suffice. A high risk of relatively trivial harm will also not meet the substantial harm standard. While the conduct must be criminal in nature, not all criminal conduct will suffice to establish a substantial risk. There must be a risk that the NCR accused will commit a “serious criminal offence”. See also Wheaton (Re), 2025 ONCA 26, at paras. 15, 22; Wheeler (Re), 2024 ONCA 726, at para. 6.
[37] The meaning of this phrase was refined in the Not Criminally Responsible Reform Act with the enactment of s. 672.5401, which provides:For the purposes of section 672.54, a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public – including any victim of or witness to the offence, or any person under the age of 18 years – resulting from conduct that is criminal in nature but not necessarily violent. [38] It is within this framework that the calibration of risk in ss. 672.64(1)(a) and (b) of the Criminal Code must be considered.
[39] The appellant challenges his HRA designation under both ss. 672.64(1)(a) and (b). I will respond to each challenge in turn.
Section 672.64(1)(a)
[40] For convenience, I reproduce the relevant language in s. 672.64(1)(a), which permits a court to make a HRA finding when: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… [Emphasis added] [41] The jurisprudence supports the proposition that a “substantial likelihood” is higher than the “significant threat” characterization in ss. 672.54(a) and 672.5401. In R. v. Schoenborn, 2017 BCSC 1556, 354 C.C.C. (3d) 393, Devlin J. wrote, at para. 42: “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 NCR accused in the pre-existing NCRMD regime, which already provides for custodial detention in a hospital where necessary.” In Hadfield, this court said, at para. 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” (emphasis added).
[42] The inquiry under s. 672.64(1)(a) is not undertaken on the assumption that the accused person is subject to the restrictions of a disposition order under Part XX.1. Instead, the focus is on the “inherent or endemic risk of violence the accused currently poses”: see Cousineau (Re), 2021 ONCA 760, at paras. 45, 50, leave to appeal refused, [2021] S.C.C.A. No. 450; Hadfield, at para. 11.
....
[53] I consider these submissions in the context of s. 672.64(2), which provides the following guidance to courts considering HRA applications:(2) In deciding whether to find that the accused is a high-risk accused, the court shall consider all relevant evidence, including
(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. [Emphasis added.] [54] This section provides trial judges with a broad palette with which to make determinations under ss. 672.64(1)(a) and (b). The anchor of the provision is “all relevant evidence”, accompanied by a non-exhaustive list of factors, which are not ranked in order of importance. Section 672.64(2) guides a fact-specific inquiry that is entitled to deference on appeal. The trial judge referenced s. 672.64(2) in his reasons.
....
Section 672.65(1)(b)
[62] A HRA finding may also be made under s. 672.64(1)(b) when: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. [Emphasis added.] [63] The trial judge’s reasons on the application of this sub-section are found in the following paragraph:
Finally, pursuant to s. 672.64(1)(b), the court is also of the belief that the accused’s acts of covering the complainant’s head and body with a blanket and cutting [the victim’s] neck and mandible with a knife were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.
[64] The appellant does not dispute that his acts were of a “brutal nature”. However, he submits that the trial judge applied the wrong standard in his assessment of the level of risk under this provision. He submits the “substantial likelihood” standard in s. 672.54(1)(a) must also be applied to s. 672.64(1)(b), even though that provision simply makes reference to a “risk”.
[65] In making this submission, the appellant relies principally on Schoenborn, a decision in which Devlin J. declined to make a HRA finding in relation to an individual who another judge determined was NCRMD for the first degree murders of his three children. In her lengthy reasons, Devlin J. addressed numerous issues of statutory interpretation. I focus only on that aspect of the judgment that addresses the level of risk in s. 672.64(1)(b).
[66] Devlin J. concluded that the “substantial likelihood” standard explicitly stated in s. 672.64(1)(a) is also applicable to s. 672.64(1)(b). This was based on a number of considerations, one being the overall purpose of the HRA regime. As she noted, the purpose of the HRA designation is to identify NCRMD accused who pose “an unacceptable risk to society”, beyond the “significant threat” standard in s. 672.5401: at para. 26.
[67] More fundamentally, Devlin J. wrote that the standard must be interpreted in light of the review provision in s. 672.84. As noted above, a Review Board may refer a HRA to a superior court for consideration, and that court may revoke the finding, if it is proved that “there is a not a substantial likelihood that the accused will use violence that could endanger the life and safety of another person”: s. 672.84(3). For this reason, Devlin J. held, the same level of risk – substantial likelihood – must be applied regardless of what pathway is taken to the designation. She observed that, if this were not the case, a person found to be a HRA pursuant to a lower standard in s. 672.64(1)(a) – merely “likely” – would be immediately eligible to have their finding set aside under s. 672.84: paras. 95-96.
[68] Aspects of Schoenborn have been cited with approval by this court in Cousineau, Hadfield and Teggart, although not on the interpretation of s. 672.56(1)(b). However, Devlin J.’s interpretation of this provision has been followed by some trial judges in this province: see R. v. Ochelebe, 2025 ONSC 5261, at paras. 141-150; R. v. Caines, 2023 ONSC 5482, at para. 55.
[69] The Crown relies on the decision of the Court of Appeal of Quebec in Lafrenière c. R., 2022 QCCA 96, leave to appeal refused, [2022] S.C.C.A. No. 86. That court rejected the Schoenborn approach in favour of an interpretation more in keeping with the plain language of s. 672.64(1)(b), which requires “a risk of grave physical or psychological harm to another person.”
[70] At the outset, the court in Lafrenière observed that ss. 672.64(1)(a) and (b) are different. Section 672.64(1)(b) is less demanding as a result of the brutal nature of the offending. In this context, all that is required is a “risk” of serious harm, physical or psychological, to another person: at para. 11. Still, the court was prepared to allow that the risk must approach the degree of risk required under s. 672.54 of the Code. As the court said, at para. 19, the prosecution must “demonstrate a risk of grave harm … a real risk (and therefore not hypothetical), which is more than ‘minimal’ / ‘miniscule’, that this harm will occur” (translation from French).[1]
[71] The court in Lafrenière acknowledged the observation of Devlin J. in Schoenborn that a HRA under s. 672.64(1)(b) may be immediately entitled to have the designation removed through the review process in s. 672.84. However, this possibility does not render the provision frivolous in the circumstances. The court pointed to the different roles of the courts and Review Boards under Part XX.1 of the Criminal Code. It characterized the designation as an emergency provision, at para. 25, furnishing judges with the power to protect the public by imposing enhanced liberty restrictions until the case comes before the Review Board. At that time, the Board, with its specialized expertise, may be better equipped to assess the nature of the risk posed by a HRA and determine whether the case should be referred to the superior court under s. 672.84: Lafrenière, at para. 23.
[72] With respect, I agree with the approach in Lafrenière. The differential phrasing and language in ss. 672.56(1)(a) and (b) demonstrate that Parliament was well aware of the distinction it created. The Lafrenière approach is faithful to the modern framework for statutory interpretation, privileging the grammatical and ordinary meaning of the text, in the context of the Parliament’s public protection goal: see R. v. Guerrier, 2024 ONCA 838, 174 O.R. (3d) 675, at paras. 21-23; R. v. Kloubakov, 2025 SCC 25, 450 C.C.C. (3d) 34, at para. 61.
[73] The subsections do not simply exchange one level of risk for another; rather, they are calibrated to different apprehended harms. Section 672.64(1)(a) demands a higher level risk of lesser harm, whereas s. 672.64(1)(b) permits a lower level risk of grave harm. Failing to recognize this distinction between ss. 672.64(1)(a) and (b) would render the subsections redundant.
[74] I accept the Crown’s submission, consistent with Lafrenière, that s. 672.56(1)(b) permits a court to intervene quickly to prioritize public safety (by blocking unsupervised access to the community) where an NCRMD accused has committed a brutal offence at a time when the Crown may not be in a position to establish a high degree of probability of re-offending. This may arise in a situation where an accused person is in the early stages of a mental illness, with little if any treatment history. It will then be for the Board to subsequently assess the HRA’s risk.
[75] I should note that the Crown does not submit that the standard under s. 672.64(1)(b) should be any lower than the “significant risk” test that the Supreme Court of Canada in Winko held was required to maintain the constitutionality of s. 672.54 (and, now, s. 672.5401). I agree – the level of “risk” referred to in s. 672.64(1)(b) must be subject to the same constitutional threshold. Returning to Winko, McLachlin C.J. wrote that “[t]here must be evidence of a significant risk to the public before the court or Review Board can restrict the NCR accused’s liberty”: para. 49. This minimal threshold must apply to s. 672.64(1)(b) with equal weight, as it too restricts the liberty of the NCR accused.
[76] Having reached this conclusion, there is no reason to challenge the trial judge’s alternate HRA finding under s. 672.64(1)(b). The brutality of the appellant’s actions speaks for itself. In the wake of this brutality, in combination with his highly treatment-resistant mental illness, the trial judge did not err in finding that, left to his own devices and without any conditions, there is a significant risk that the appellant will cause grave harm to another person, just as he intimated while under pre-trial psychiatric care.
|
