Crown won't appeal Schoenborn 'no risk' label

 that the offences the accused committed were of such a brutal nature, they indicate a risk of grave physical or psychological harm to others (section 672.64(1) Criminal Code).

Factors that a court is obliged to consider in deciding whether someone meets the test for “high-risk” include, but are not limited to, the mental condition of the NCR accused at the time of the application, the past and expected course of his treatment, and the opinions of experts who have examined the accused (section 672.64(2)).

Where a court determines that a “high-risk” finding is warranted, it must order that the NCR accused be detained in custody in a hospital (section 672.64(3)). However, notwithstanding this provision, a “high-risk” finding does not mean that an NCR accused is never allowed to leave the hospital. The July 2014 amendments to the Criminal Code contemplate the possibility of limited escorted absences in the community, even with a “high-risk” finding. Such absences must be:

•   for medical reasons, or,

•   for any purpose that is necessary for treatment, if the accused is escorted by a person who is authorized by the person in charge of the hospital (section 672.64(3)(a)).

  A “high-risk” finding permits the Review Board to extend the period between reviews to up to 36 months, rather than annually. However, this extended period is not automatic upon a “high- risk” finding. It is available only where

•   the NCR accused consents; or,

•   the Review Board is satisfied that his condition is not likely to improve, and detention remains necessary for the period of the extension (s 672.81(1.31) and (1.32)).

  The Jurisdiction to File an Appeal

  A decision with respect to an HRA finding can be appealed to the Court of Appeal for British Columbia under section 672.64(4) and 672.72 of the Criminal Code.

  However, before filing an appeal, the BCPS must be satisfied that the Crown has an appropriate legal basis on which to establish that appellate intervention is warranted. Section 672.78(1) of the Criminal Code authorizes a Court of Appeal to set aside a lower Court’s disposition only where the Appeal Court is first satisfied, on the whole of the record before it, that:

•   the disposition is unreasonable or cannot be supported by the evidence;

•   the disposition is based on a wrong decision on a question of law; or,

•   there was a miscarriage of justice.

Even where the Crown can point to a legal error, an appeal will not necessarily succeed. Under the Criminal Code, a Court of Appeal can still dismiss a Crown appeal if it finds that the lower court’s error did not lead to a substantial wrong or miscarriage of justice: section 672.78(2)(b).

This is a stringent test. The Supreme Court of Canada has ruled that where a disposition is one that “could reasonably be the subject of disagreement” among persons who are “properly informed of the facts and instructed on the applicable law”, an appellate court “should in general decline to intervene”. An appeal of the decision to dismiss the Crown’s HRA application is limited to questions of law or mixed law and fact (section 672.72). The Court of Appeal will generally defer to the factual findings of the lower court absent them being unreasonable (section 672.78). It is also not the role of an appeal court to “re-weigh” the evidence: R. v. Owen, 2003 SCC 33. This standard of appellate review is binding across Canada.

The Crown’s Review of the Schoenborn Disposition

The Crown filed its HRA application on September 4, 2015. A preliminary ruling upholding the retrospective application of these provisions to the accused was made on December 2, 2015. The hearing of the substantive application commenced on May 2, 2016, occupied 46 court days over a 16-month period, and concluded on August 31, 2017. A team of three Crown Counsel presented a full and thorough case. In total 10 expert witnesses, called on behalf of both Crown and defense, testified about the risk posed.

The decision to deny the Crown’s HRA application has been thoroughly reviewed by senior counsel at Criminal Appeals and Special Prosecutions, who are unanimous that there is no legal basis for an appeal in this matter.

The BCPS has concluded there is no likelihood it can establish within the meaning of the Criminal Code, that the Schoenborn disposition:

•   is unreasonable or cannot be supported by the evidence;

•   is based on a wrong decision on a question of law; or,

•   constitutes a miscarriage of justice.

  While not the result the Crown was seeking, the HRA ruling is detailed and deals comprehensively with the evidence and all the major issues raised by the parties. Specifically, the court found that while Mr. Schoenborn represented a sufficient risk for the Review Board to detain him in custody (section 672.54), the higher level of risk needed to designate him a HRA (section 672.64) was not made out. This was the first authoritative judgment interpreting the HRA provisions. The Crown is unable to say that the legal standard of higher risk articulated by the court is clearly incorrect.

  Overall, the ruling is mostly a factual determination (involving the weighing of various expert reports and other evidence) which would be entitled to significant deference by an appellate court and would be unlikely to be overturned on appeal.