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DISPOSITIONS-NOT CRIMINALLY RESPONSIBLE ON ACCOUNT OF MENTAL DISORDER-SECTION 672.64(1)(b)-HIGH RISK ACCUSED

Lafrenière c. R., 2022 QCCA 96, January 24, 2022.  [Translation]

Appeal from a finding of high-risk accused.

Dismissed.

The appellant was found not criminally responsible on account of mental disorder on a charge of second degree murder. He was found to be a high-risk accused solely on the basis of s. 672.64(1)(b) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr.C.). The appellant argues that this section must be interpreted so as to require proof of a substantial likelihood that the accused will use violence that could endanger the life or safety of another person. Moreover, he submits that the judge placed too much emphasis on the criterion of brutality in her analysis, at the expense of the factors set out in s. 672.64(2) Cr.C.

Although the violence and brutality of the offence are not sufficient to support a finding of high-risk accused, as was established in Gaudette c. R. (C. A., 2021-06-29), 2021 QCCA 1071, SOQUIJ AZ-51776894, 2021EXP-1941, the appellant’s actions and relentlessness in this case are almost inconceivable. Sections 672.64(1)(a) and 672.64(1)(b) Cr.C. have different objectives. While paragraph (a) requires the judge to be convinced of the existence of a substantial likelihood of the subsequent use of violence that could endanger the life or safety of another person, paragraph (b) is less exacting. It does not qualify the risk, but is satisfied by the judge’s opinion that the acts giving rise to the offence are of such a brutal nature that there is a risk of grave physical or psychological harm to another person. The analytical framework is inevitably different. It is necessary to seek the intention of Parliament and give meaning to the two disjunctive aspects of s. 672.64(1) Cr.C., while complying with the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I).

A finding based exclusively on s. 672.64(1)(b) Cr.C. creates a real possibility that, at the very first hearing before the Review Board for mental disorder, that body may refer the matter back to the Superior Court for review and the Superior Court may revoke the finding. This situation, however, does not lead to the conclusion that this provision is futile. Parliament was well aware of the distinction between paragraphs (a) and (b) and its consequences on the review procedure, as it specifically refers to it in s. 672.84(1) Cr.C. It is therefore not an oversight or an error. For Parliament, the exercise that takes place before the Court is different from the exercise that takes place before the Review Board.

In s. 672.64(1)(b) Cr.C., it is established that the gravity of harm may arise from the brutality of the acts giving rise to the offence, but the prosecution must demonstrate a real risk (not speculative or “minuscule”) that such harm may occur. A risk of grave harm is very different from a substantial likelihood of violence that could endanger the life or safety of others. Accordingly, even though the trial judge found, under paragraph (a), that there was no substantial risk that the offender would reoffend, when she should have instead referred to a substantial likelihood of violence, she could nevertheless find the appellant to be a high-risk accused under paragraph (b) because she was of the view that, due to the brutality of the acts, there was a risk of grave harm.

Contrary to the appellant’s submission, the judge assigned the proper weight to the factors set out in s. 672.64(2) Cr.C. in her analysis. The decision to set aside the opinion of the expert appointed by the appellant deserves a measure of deference, especially since it is reasoned and reasonable. Moreover, both experts found that the auditory hallucinations that led to the appellant’s violent acts were still present, which is very relevant to the risk analysis. There is therefore no cause to intervene in this case.