R. v. Rogers (B.C.C.A.) British Columbia Court of Appeal McEachern C.J.B.C., Taggart, Anderson, Legg and Hollinrake Criminal law — Fundamental principles of justice — Terms of probation that accused submit to treatment — Whether probation order violation of Canadian Charter of Rights and Freedoms — Factors to be considered in sentencing.
This was an appeal from a sentence imposed ordering that the accused be placed on probation for 15 months, a term of probation being that he take whatever psychiatric assessment or treatment was directed. The 33-year-old accused had a long criminal record and was suffering from a chronic mental illness. After his arrest for possession of a dangerous weapon, he had been admitted to hospital and received medication which improved his condition. He had a history of non-compliance with medication programs. He was under the care of a private physician and taking medication as prescribed at the time. He argued that the terms of the probation order were contrary to section 7 of the Canadian Charter of Rights and Freedoms.
HELD: The appeal was allowed and the terms of the probation varied. The probation order violated the Charter and was not saved by section 1 thereof. It was contrary to the fundamental principles of justice. A sentence imposed had to be based on the general principles of sentencing which included a consideration of the circumstances of the offence and the offender. STATUTES, REGULATIONS AND RULES CITED:
Canadian Charter of Rights and Freedoms, 1982, ss. 1, 7.
Criminal Code, R.S.C. 1985, c. C-46, ss. 87, 606(4), 737(2)(h). Counsel for the Appellant: Georges A. Goyer.
Counsel for the Respondent: William F. Ehrcke.
ANDERSON J.A. (for the Court, allowing the appeal):— This is an appeal from a sentence imposed on May 22, 1990 by McGivern, P.C.J., wherein he ordered that the appellant be placed on probation for a period of 15 months. The probation order reads, in part, as follows:
WHEREAS on May 22nd, 1990, at Vancouver, B.C. Donald Rogers, hereinafter called the offender, pleaded guilty to, or was tried under the
Criminal Code and was convicted or found guilty, as the case may be, upon the charge that
On the 9th day of April, 1990, in the City of Vancouver,
Province of British Columbia, did have in his possession
weapon to wit: a knife, for a purpose dangerous to the public peace,
contrary to Section 87 of the Criminal Code of Canada. Pursuant to Section 606(4) CCC, with the consent of the prosecutor, the accused pleads not guilty to the offence charged, but guilty to the offence of
possession of a concealed weapon, and I find the accused not guilty of the offence charged but guilty of the offence of possession of a concealed weapon. AND WHEREAS on May 22nd, 1990, the Court adjudged that the offender be imprisoned in the Province of British Columbia, for the term of
one (1) day, and, in addition thereto, that the said offender comply with the conditions hereinafter prescribed: NOW, therefore, the said offender shall, for the period of fifteen (15) months from the date of expiration of his sentence of imprisonment, comply
with the following conditions, namely that the said offender shall keep the peace and be of good behaviour and appear before the Court when required to do so by the Court, and, in addition,
You will report today to a Probation Officer at 275 E. Cordova St., Vancouver, B.C. and then report to the Inter Ministerial Project at
219 Main St., Vancouver, B.C. After that you will have to go back to
the Inter Ministerial Project Office whenever they tell you to, at least once a month.
You will, under their direction. seek and take whatever psychiatric
assessment or treatment that can be arranged for you and you shall
do that as you are directed by the Inter Ministerial Project Office.
As directed by the Inter Ministerial Project Office you shall report to
the Forensic Psychiatric Outpatient Clinic on West Broadway,
You will not have any knives in your pocket; on your possession in a
public place, except while eating in a restaurant.
On April 9, 1990, the appellant was arrested on a charge of possession of a knife for a purpose dangerous to the public peace.
The circumstances of the offence were described by counsel for the Crown as follows:
Your Honour, the circumstances here, it was April 9th, 1990, at approximately three twenty in the afternoon. A witness sees the accused
cross Hornby and approaches a woman who's standing on the corner. Apparently there's quite a few He is holding what appears to be a kitchen knife in his right hand. He is
described as poking it, one of the people, one of these women who was
standing there. The woman moves. There's no contact. The light changes and people start crossing the street.
The accused then picks the knife up, puts it over his head and does really
nothing with it. He then puts the knife back into his pocket.
The appellant, who is 33 years of age, has a criminal record as follows:
The appellant appeared in court on April 11, 1990 and was remanded at that time for 30 days in order that a psychiatric assessment be obtained.
A psychiatric assessment was prepared by Dr. J.M. Levy, a psychiatrist, and reads as follows:
Mr. Donald Rogers is a 33 year old separated father of two children who had been living at 110 Water Street, Vancouver, B.C. prior to his arrest. Mr. Rogers is currently unemployed and supports himself on a handicapped pension provided through the Ministry of Social I Services and Housing. He was arrested on April 9, 1990 on an alleged offence of possession of a
dangerous weapon. He was reported to have threatened a woman with a knife. On his arrest, Mr. Rogers is said to have "put up a struggle". The arresting officers noted he was sober, but said the accused appeared to have mental problems, therefore they requested a psychiatric evaluation prior to his release. Once in custody, Mr. Rogers was seen by Dr. MacDonald, who found Mr. Rogers unable to give much of an account of the event which has resulted in his arrest and recommended a referral for a psychiatric opinion. I had the opportunity to see Mr. Rogers on April 10, 1990 at which time I found him to be poorly cooperative and unable to give a coherent story of the events
which had led to his arrest. During the interview he was preoccupied and
gave only fragmented responses to questions. There was evidence of paranoid trends to his thinking. Given the evidence of his disturbed form of thinking and possible paranoid delusions, it was my opinion Mr. Rogers was suffering from a mental illness, schizophrenia, and in need of a further assessment to determine his fitness to stand trial. Mr. Rogers was referred by Garth Gibson, Crown Counsel, Ministry of Attorney General, for the purpose of obtaining a psychiatric opinion on his
fitness to stand trial and was subsequently admitted to the Forensic Psychiatric Institute on April 12, 1990. On admission to the Forensic Psychiatric Institute, Mr. Rogers was described as appearing preoccupied. He showed evidence of psychomotor agitation which required frequent redirection. When interviewed by
attending staff, he was said to be uncooperative, vague, agitated and
confused. At one point he was thought to be hallucinating. Given his past history of mental illness and mental I state at the time, he was certified under the Mental Health Act and started on anti-psychotic medication. Mr. Rogers has now been receiving antipsychotic medication for three weeks and during this time, there has been a steady but gradual improvement in his mental state. When last interviewed on May 8, 1990, he was able to describe the events which had resulted in his arrest, stating, he
had "been playing with a knife" and guessed the girl who was involved "thought he was serious". He informed me he was arrested in a restaurant, where he was grabbed by police and taken into a lane or hallway where he claims to have been beaten before being taken to jail. When asked about the
knife, he said 9] it just happened to be on him". He denied having to carry a knife to protect himself from any perceived threats. The only problems Mr. Rogers complained of, when last interviewed, were the watering of his eyes and nose which he attributed to the medication he was on. When asked, he admitted to a previous psychiatric history beginning twelve years ago with an admission to a hospital in Winnipeg. Mr. Rogers admitted to several hospitalizations since then. In spite of
repeated hospitalizations, he was not aware of his diagnosis. Mr. Rogers informed me he had been taking medication prior to his arrest, but did not know it's name. All he could tell me about his treatment was that he received it every two weeks by injection. Mr. Rogers reported he received the medication from his physician, Dr. Ratzlaff. During the course of the interview, Mr. Rogers presented as a somewhat unkempt looking man who appeared older than his 33 years. He was cooperative with the interview. His behaviour was I characterized by restless movement of his legs. He described his mood as "good". Mr.
Rogers' thinking was much more goal directed than when first seen.
Although there is still some evidence of illogical thinking and mild loosening of associations, he did not show any evidence of delusional thinking. When asked, he denied auditory hallucinations and at no time did he appear to be hallucinating. He was alert and orientated. Collateral information obtained by Ms. L. Chow, Social Worker, indicates the presence of some discrepancies in Mr. Rogers' past history. According to information on file at the InterMinisterial Project, Mr. Rogers was first hospitalized in 1982 in Winnipeg, where he was described as showing evidence of thought disorder and hallucinations. Following his discharge
from hospital, he migrated to the Vancouver downtown east side. Since then he has access to a multitude of services, including the Strathcona Community Care Team, Vancouver General Hospital, Venture, Lookout, St. James Social Services, Coast Foundation Society, Ministry of Social Services and Housing, and Forensic Psychiatric Services. He has been described as being non- compliant to psychiatric treatment tending toward self-medicating with illicit drugs. When off medication, Mr.
Rogers is said to neglect his hygiene and becoming more preoccupied with internal cues. He is also said to become disorganized in his thinking. At these times he is said to be more easily agitated and, at times, hostile. As noted above, there has been some improvement in his mental state since admission to hospital. He is now much more coherent in his thinking. When last interviewed, Mr. Rogers was able to explain circumstances of the arrest
and the reason for his admission to hospital, stating, "to see if I am sane". He realizes that the period of remand is 30 days and knows he will be returning to court on Friday. While at the Forensic Psychiatric Institute, Mr. Rogers has enlisted the help of legal aide. He appreciates he will have to tell his lawyer the truth and in
return expects his lawyer to tell the court "he has served enough time". He is aware of the various pleas available to him and intends to plead "not
guilty". Mr. Rogers continues to show some evidence of disorganized thinking, but probably not of significant magnitude to interfere with his ability to participate in his defense. Therefore, in conclusion, Mr. Rogers is suffering from a chronic mental illness, schizophrenia. At the time of his admission to hospital, he was acutely psychotic and showed evidence of agitation, perplexity and disorganized thinking. With treatment, he has shown a gradual
improvement to the point he is probably of sufficient mind to participate in his trial. His, present level of well being is likely tenuous and will require continued medical follow-up and treatment. Should he become non- compliant again, there is a good chance his current level of mental functioning will deteriorate. I would, therefore, like to recommend, if released on bail, he be required to receive continued psychiatric follow-up Forensic Outpatient Services. Other
possibilities for follow-up include the Strathcona Community Care Team or lastly, his family physician. I would also like to propose Mr. Rogers continue his contact with the Inter-Ministerial Project. At the time of his discharge, Mr. Rogers was receiving Haldol, 5 mgs, p.o., T.i.d. and Procychdine, 5 mgs, p.o. T.i.d. The possibility of a long acting
intramuscular injection was discussed with him, but refused. Given his past history of non-compliance, his future prognosis is poor.
From the above assessment, the following facts may be gleaned:
1) The appellant has been suffering from a chronic mental illness,
2) Since his admission to hospital, the appellant has received medication
and his mental condition has greatly improved.
3) Prior to his discharge from hospital, Dr. Levy discussed with the
appellant the possibility of a "long acting", intramuscular injection but
4) The appellant has a past history of non- compliance with medication
programs and, therefore, his future prognosis is poor.
We were informed by counsel for the appellant that he is now under the care of a private physician and that he is now, by consent, taking medication as prescribed by his physician.
The order made by McGivern, P.C.J. was made pursuant to s. 737(2)(h) of the Code reading as follows:
comply with such other reasonable conditions as the court considers desirable
for securing the good conduct of the accused and for preventing a repetition
by him of the same offence or the commission of other offences.
Counsel for the appellant submits that, in the circumstances of this case, a probation order compelling an accused person to "seek and take whatever psychiatric assessment or treatment that can be arranged for you" is contrary to s. 7 of the Charter.
He made reference to several reports of the Law Reform Commission of Canada in his factum as follows:
The Law Reform Commission of Canada has considered the issue of treatment in relation to the criminal law in a number of publications. As far back as 1975, the Law Reform Commission in its Working Paper number
14, "THE CRIMINAL PROCESS AND MENTAL DISORDER" ,
indicated that probation orders which contained conditions of psychiatric treatment should only be made where the offender consents. See page 45 of the aforesaid report: Probation orders with conditions of psychiatric treatment should be made only where: (1) the offender understands the kind of program to be
followed, (2) he consents to the program and, (3) the psychiatric or I counselling services have agreed to accept the offender for treatment.
See also Working Paper 26, "MEDICAL TREATMENT AND CRIMINAL
LAW [1980, p. 73, where the following recommendations are contained:
(10) that the right of a competent adult to refuse treatment be specifically
(11) that treatment shall not be administered against an individual's refusal,
unless there is a finding of incompetence or an exception recognized in
He also relied upon the judgment of the Supreme Court of Canada in Reference re Section 94(2) of the Motor Vehicle Act, R.S.B.C. 1979. c. 288 (1985), 48 C.R. (3d) 289.
I agree with the submissions made by counsel for the appellant. In my opinion, a probation order which compels an accused person to take psychiatric treatment or medication is an unreasonable restraint upon the liberty and security of the accused person. It is contrary to the fundamental principles of justice and, save in exceptional circumstances, cannot be saved by s. 1 of the Charter. Exceptional circumstances are not present here.
While, as counsel for the Crown has stated, it is unlikely that an accused person would be subjected to unusual or dangerous medication or treatment, that risk always exists. In my opinion, it is the protection of the public which is the principal support for an order compelling the compulsory taking of treatment or medication. That is insufficient to save the order under s. 1 of the Charter. Other less drastic means are available to accomplish that purpose.
The fact that the probation order in this case is invalid, as being contrary to the Charter, does not solve the problem confronting the court. While the rehabilitation of the appellant is important, the court must consider the risks involved in permitting the appellant to be at liberty on probation. In other cases, where the trial judge finds as a fact that an accused person is suffering from schizophrenia or a like illness and refuses to consent to prescribed treatment or medication, it might very well be that the trial judge would not consider probation. The risk to society might be too great and only incarceration may afford the necessary protection.
I do not think it is possible to say that a particular form of probation order will be appropriate for all cases. The sentence to be imposed on each offender must be based on the general principles of sentencing which include a consideration of the circumstances of the offence and of the offender. The result is that different conditions may be imposed in probation orders depending on the circumstances of I each case. To the extent possible, the conditions should be designed to ensure the protection of the public. However, they should not compel an offender to undergo medical treatment including the compulsory taking of medication. it is with those considerations in mind that I now consider the conditions numbered 1 to 4 in the probation order in the case at bar.
In this case the appellant has a history of non- compliance with prescribed treatment and medication. However, he has now consented to, and is taking, treatment and medication under the care of a private physician. If he continues to take the advice of his physician and takes medication as prescribed, the risk of unlawful behaviour on the part of the appellant will be greatly reduced.
Having regard to the above, I would supplant conditions numbered 1 to 4 in the probation order with the following provisions:
1. You will take reasonable steps to maintain yourself in such condition
your chronic schizophrenia will not likely cause you to conduct
yourself in a manner dangerous to yourself or anyone else; and
(b) it is not likely you will commit further offences.
2. You will forthwith report to a Probation Officer at 275 E. Cordova St.,
Vancouver, B.C. and thereafter, if directed to do so, you will forthwith
report to the Inter Ministerial project at 219 Main St., Vancouver, B.C.
3. You will therafter attend as directed from time to time at the Inter
Ministerial project for the purpose of receiving such medical
counselling and treatment as may be recommended except that you
shall not be required to submit to any treatment or medication to which you do not consent.
4. If you do not consent to the form of medical treatment or medication
which is prescribed or recommended, you shall forthwith report to your
Probation Officer and thereafter report daily to your Probation Officer.
If directed to do so by your Probation Officer, you shall report to the Inter Ministerial Project at 219 Main Street, Vancouver, B.C. for the purpose of being monitored with respect to a possible breach of Condition 1 above.
5. You shall provide your treating physician with a copy of this order and
the name, address and telephone number of your Probation Officer. You shall instruct your treating physician that if you fail to take
medication as prescribed by him or fail to keep any appointments made with him, he is to advise your Probation Officer immediately of any such failures.
6. Except when eating in a restaurant you will not have any knife in your
In addition, I would extend the term of probation to May 21, 1993.
I would allow the appeal to the extent indicated.
ANDERSON J.A. McEACHERN C.J.B.C.:— I agree. TAGGART J.A.:— I agree. LEGG J.A.:— I agree. HOLLINRAKE J.A.:— I agree.
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