R. v. Knoblauch, 2000 SCC 58, [2000] 2 SCR 780

R. v. Knoblauch, [2000] 2 S.C.R. 780

Warren Laverne Knoblauch                                                              Appellant

v.

Her Majesty The Queen                                                                   Respondent

and

Alberta Mental Health Board                                                           Intervener

Indexed as:  R. v. Knoblauch

Neutral citation:  2000 SCC 58.

File No.:  27238.

2000:  April 17; 2000:  November 16.

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for alberta

Criminal law — Sentencing — Conditional sentences — Accused pleading guilty to unlawful possession of an explosive substance and possession of a weapon for a purpose dangerous to the public peace and receiving conditional sentence plus probation — Conditions of sentence and probation order requiring accused to reside in a psychiatric treatment unit — Whether conditional sentence could be imposed on facts of this case — Whether court can require that a conditional sentence be served in a secure mental health institution — Criminal Code, R.S.C., 1985, c. C‑46, s. 742.1 .

The accused has a lengthy history of mental illness and of dangerous handling of explosives.  He also has a long history of treatment, and received out‑patient psychiatric treatment as a requirement of a probation order in force against him between 1993 and 1996 because of an incident where he had taken a firearm to work with the intent of shooting a co‑worker, for which he received a conditional discharge, three years’ probation, and a 10‑year firearms prohibition.  In 1998 the accused pleaded guilty to unlawful possession of an explosive substance and to possession of a weapon for a purpose dangerous to the public peace, contrary to ss. 100(12)  and 87  of the Criminal Code .  The police had found in the accused’s vehicle and in his apartment an arsenal capable of causing mass destruction to property, death and serious injury to persons in the area.  At the sentencing hearing the defence called two forensic psychiatrists in support of its request that a conditional sentence be imposed, under the terms of which the accused would reside in a secure mental health institution, under the care and supervision of psychiatrists.  After hearing the submissions of the parties, the trial judge imposed a conditional sentence of two years less a day followed by three years of probation.  Both the sentence and the probation order required the accused to reside in a locked psychiatric treatment unit at the hospital where he was receiving treatment, until a consensus of psychiatric professionals made a decision to transfer him from that locked unit.  It was further stipulated that if he were transferred from the locked unit, the accused was to reside at such treatment facility as directed by his attending physician or her successor or designate.  The Court of Appeal set aside the conditional sentence and substituted a period of incarceration of two years less a day, to be followed by a three‑year period of probation on substantially the same terms as those imposed by the trial judge.

Held (L’Heureux‑Dubé, Gonthier, Iacobucci and Bastarache JJ. dissenting):  The appeal should be allowed.

Per McLachlin C.J. and Major, Binnie, Arbour and LeBel JJ.:  The sentence imposed by the trial judge should be restored.  The trial judge was entitled to conclude that “serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing”, in accordance with s. 742.1 (b) of the Criminal Code .  That provision does not exclude “dangerous offenders” from access to conditional sentences.  Rather the focus of the analysis at this point should be on the risk posed by the individual offender while serving his sentence in the community.  The danger to the community is evaluated by reference to:  (1) the risk of re‑offence; and (2) the gravity of the damage in the event of re‑offence.  In the present case the gravity of the damage in the event of re‑offence could be extreme.  Although the accused did not set off any explosive substance, he was in possession, in extremely dangerous circumstances, of substances that could easily ignite and even accidentally explode, thereby causing extremely serious personal injury and death.  If the conditions imposed by the trial judge are taken into account, however, the risk that the accused would re‑offend while serving his conditional sentence is reduced to a point that it is no greater than the risk that he would re‑offend while incarcerated in a penal institution.  The sentence fashioned by the trial judge provided that the accused would be in a locked, secure psychiatric facility, in the care and custody of forensic psychiatrists who were well aware of his history, and who by no means minimized his dangerousness.  They would have been vested with the authority to determine the pace and method of his gradual release and reintegration into society, ultimately through the probation order.  In contrast, the accused’s incarceration in a penal institution, subject as it is to the provisions of the Corrections and Conditional Release Act , could require his earlier release, or, in any event, would most likely leave him considerably less well prepared for facing his renewed liberty.  Assuming that the conditions imposed by the trial judge were available to him as a matter of law, it was open to him to conclude that the condition precedent expressed in s. 742.1 (b) was met.

The order that the accused serve his conditional sentence in a secure residential setting, not only with his consent but at his request, is not precluded under ss. 742.1 and 742.3 of the Code.  Conditional sentences were designed by Parliament as a desirable alternative to incarceration.  A distinction must be made between incarceration or imprisonment in either prisons or penitentiaries and other custodial or residential arrangements which may form an acceptable alternative to incarceration.  The conditions that may be attached to a conditional sentence under the Code are not exhaustively enumerated and call for a large measure of discretion.  Assuming that the conditions precedent to the imposition of a conditional sentence are met, nothing in s. 742.3 precludes resorting to community‑based facilities, even residential ones, simply because they have a custodial aspect, as long as they can be seen as a genuine alternative to incarceration.  The alternative to incarceration that Parliament contemplates is the alternative not to a particular place or building, but to a regime of detention, program and release governed by legislation such as the Corrections and Conditional Release Act .  In the case of a conditional sentence, a regime uniquely suited to the offender is put in place by the terms of the order under which the conditional sentence is imposed.  It is tailored to take into account the needs of the offender and those of the community into which he will need to be reintegrated.  This includes taking full advantage of all community‑based services, including residential programs, and including residential programs that may have a compulsory residential element, as long as the programs serve the ends expressed in s. 718 of the Code.  The sentence imposed by the trial judge in this case was legal and fit and was the one that best served the objectives of sentencing expressed in s. 718 of the Code.  Moreover, it was the sentence that best ensured that the dangerousness of the accused would be curtailed for the longest period of time, with both short‑term and long‑term benefits to the community at large.

Per Iacobucci J. (dissenting):  There is agreement with the majority’s view that, generally speaking, a conditional sentencing order can be made under the Criminal Code  requiring an offender to undergo treatment in a closed psychiatric facility, provided that such an order is reasonable in the circumstances, and consistent with the purpose and principles of sentencing.  In such a situation, the discretion afforded to sentencing judges under s. 742.3(2)(f) of the Code is wide enough to include sentences that require psychiatric care in a hospital setting.  As found by the minority, however, a conditional sentence was not an appropriate order in this case  since the accused did not satisfy the test for dangerousness set out in Proulx.

Per L’Heureux‑Dubé, Gonthier and Bastarache JJ. (dissenting):  The Court of Appeal was correct in overturning the conditional sentence in this case.  The sentence was inappropriate both because the precondition that the accused not endanger the safety of the community was not satisfied and because the conditional sentencing regime does not contemplate serving a sentence in a locked psychiatric unit of a hospital.

In assessing whether the accused is a danger to the community, the court must consider the following two factors:  (1) the risk of the offender re‑offending; and (2) the gravity of the damage that could ensue in the event of re‑offence.  In assessing the risk of re‑offence in this case, the accused’s history of weapons offences must be considered.  The record demonstrates that the accused was already subject to a prohibition from possessing firearms, ammunition and explosives at the time that he committed the offences in question.  Nevertheless, by the time the accused was apprehended, he had amassed a large arsenal of highly volatile explosives capable of injuring many people and leading to substantial property damage.  The medical evidence also establishes that the accused has been engaged in dangerous activity in the past even while undergoing treatment.  Unfortunately, whether the accused is sentenced to a prison term or treated at a psychiatric hospital, he will likely remain a danger even when his sentence is complete.  While the accused would be subject to supervision during the term of his conditional sentence, the evidence points to a risk of re‑offending despite such supervision and the availability of programs.  Moreover, the sentence order did not ensure that the accused remained under maximum security at the hospital throughout the entire period of his sentence.  The accused was to reside in a locked psychiatric treatment unit of the hospital until a consensus was reached among psychiatrists that he could be transferred into other treatment facilities.  Since no evidence was tendered regarding the level of security at those other facilities, there is no way of ensuring that there would not be a risk of re‑offence once the accused was released.  Further, even if it were accepted that the risk of re‑offence is only minimal, the gravity of the potential harm that would ensue if the accused were to re‑offend precludes a conditional sentence in and of itself.

While persons in psychiatric hospitals continue to be members of the community, “community” in s. 742.1 of the Code must be interpreted as also including the general public.  The community with which a sentencing judge must be concerned  consists of all persons who could be at risk of being harmed by the offender.  If there is a danger to any person by the offender serving the sentence in the community, whether that person be a resident of the psychiatric hospital or in the public at large, then a conditional sentence should not be imposed.

Even if it were to be concluded that the accused does not represent a danger to the community, the conditional sentencing regime does not contemplate serving a sentence in a locked psychiatric unit as a condition of the sentence.  A conditional sentence which confines an offender to a psychiatric institution is distinct from a treatment order envisioned in s. 742.3(2)(e).  Nor can s. 742.3(2)(f), under which the court may impose “such other reasonable conditions as the court considers desirable”,  be used to confine an individual to a psychiatric hospital.  While the conditional sentence may incorporate some  restrictive conditions such as house arrest and curfews with non‑custodial measures, offenders serving a conditional sentence are not confined to an institution but are meant to continue working, attending school, and participating in treatment programs.  This Court’s decision in Proulx makes it evident that conditional sentences are meant as an alternative to incarceration and not as a sentence to any type of locked institution subsequent to which the offender would have to be reintegrated into the community.  This view of the philosophy behind the conditional sentencing regime is buttressed by the recent appellate decisions which hold that “blended” sentences, where the first part of the sentence is served in custody and the latter part is a conditional sentence under supervision in the community, are illegal and contrary to the underlying purpose of the conditional sentencing regime.  A review of the legislative history of the conditional sentencing provisions also suggests that Parliament intended that conditional sentences be non‑institutional in nature and that supervision in the community was not meant to be equivalent to confinement in an institution.  The usual methods of confining a person to a hospital in the criminal context are as a condition of parole, or through a ruling that the person is not criminally responsible on account of mental disorder.  Unlike a person held not criminally responsible on account of mental disorder, a person with a mental disability who is being sentenced is criminally responsible for his or her actions.  The principle of “proportionality”, codified in s. 718.1 of the Code, dictates that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.  Here the accused possessed a culpable state of mind, and his sentence should reflect this.

Cases Cited

By Arbour J.

Considered:  R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; referred to:  R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Degan (1985), 20 C.C.C. (3d) 293.

By Iacobucci J. (dissenting)

R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5.

By Bastarache J. (dissenting)

R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Brady (1998), 121 C.C.C. (3d) 504; R. v. Maheu (1997), 116 C.C.C. (3d) 361; R. v. Fisher (2000), 47 O.R. (3d) 397; R. v. Hirtle (1999), 136 C.C.C. (3d) 419; R. v. Wey (1999), 142 C.C.C. (3d) 556; R. v. Monkman (1998), 132 C.C.C. (3d) 89; R. v. Maynard, [1999] M.J. No. 8 (QL); R. v. Kopf (1997), 6 C.R. (5th) 305; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Wells, [2000] 1 S.C.R. 207, 2000 SCC 10; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625.

Statutes and Regulations Cited

Act to amend the Criminal Code  (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22.

Correctional Institution Regulations, Alta. Reg. 138/77, ss. 14‑19.

Corrections Act, R.S.A. 1980, c. C‑26, s. 9.

Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 2(1)  “penitentiary”, 17, 30.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 16  [rep. & sub. 1991, c. 43, s. 2], 87, 100(12), Part XX.1, 672.54 [ad. 1991, c. 43, s. 4], Part XXIII [repl. 1995, c. 22, s. 6], 718, 718.1, 718.2 [am. 1997, c. 23, s. 17], 732.1(3)(h), 742.1 [am. 1997, c. 18, s. 107.1], 742.3(1), (2), 742.6(9), 747 to 747.8 [not in force], 753.

Mental Health Act, S.A. 1988, c. M‑13.1.

Authors Cited

Canada.  House of Commons.  House of Commons Debates, vol. 133, 1st Sess., 35th Parl., September 20, 1994, pp. 5871, 5873.

Nouveau Petit Robert:  Dictionnaire alphabétique et analogique de la langue française.  Paris: Le Robert, 1996, “collectivité”.

Sullivan, Ruth.  Driedger on the Construction of Statutes, 3rd ed.  Toronto:  Butterworths, 1994.

Tollefson, Edwin A., and Bernard Starkman.  Mental Disorder in Criminal Proceedings.  Scarborough, Ont.:  Carswell, 1993.

APPEAL from a judgment of the Alberta Court of Appeal (1999), 232 A.R. 289, 195 W.A.C. 289, [1999] A.J. No. 377 (QL), allowing the Crown’s appeal from the conditional sentence imposed by Chrumka Prov. Ct. J.  Appeal allowed and sentence restored, L’Heureux‑Dubé, Gonthier, Iacobucci and Bastarache JJ. dissenting.

Mona T. Duckett, Q.C., for the appellant.

Arnold Schlayer, for the respondent.

Mary A. Marshall, for the intervener.

The judgment of McLachlin C.J. and Major, Binnie, Arbour and LeBel JJ.

was delivered by

Arbour J. —

I.  Introduction

1                                   This appeal lies at the often ambiguous crossroads between the criminal justice and the mental health care systems. 

2                                   On November 3, 1998, the appellant pleaded guilty to having in his possession an explosive substance while prohibited from doing so, contrary to then s. 100(12)  of the Criminal Code, R.S.C., 1985, c. C-46 .  The matter was remanded to December 15, when the accused pleaded guilty to the further offence of having in his possession a weapon  for a purpose dangerous to the public peace, contrary to then s. 87  of the Criminal Code .  A detailed agreed statement of facts was read into the record, and the matter proceeded to a sentencing hearing in which the defence called two forensic psychiatrists in support of its request that a conditional sentence be imposed, under the terms of which the appellant would reside in a secure mental health institution, under the care and supervision of psychiatrists.  After hearing the submissions of the parties, the trial judge imposed a conditional sentence  followed by three years of probation.  The conditions of both the two-year sentence and the probation order required the appellant to reside in a psychiatric treatment unit at the Alberta Hospital Edmonton.  

3                                  On March 2, 1999, upon appeal by the Crown, the Court of Appeal ((1999),  232 A.R. 289) set aside the conditional sentence and substituted a period of incarceration of two years less a day, to be followed by a three-year period of probation on substantially the same terms as those imposed by the trial judge.  On October 21, 1999, the appellant was granted full parole also with similar conditions.  He was moved to the Alberta Hospital Edmonton where he is required, as a resident of the Hospital, to attend its rehabilitation program.  The appellant currently resides at the Hospital. 

4                                   The issue before us is to determine whether the seven months’ hiatus, during which the continued residential psychiatric treatment of the appellant at the Alberta Hospital Edmonton was interrupted,  is required by law.  The legality of the conditional sentence originally imposed by the trial judge must therefore be examined.  That, in turn, rests on two issues.  First, whether a conditional sentence could be imposed on the facts of this case, and second, whether the court can require that a conditional sentence be served in a secure mental health institution. 

5                                   In my view, both questions must be answered in the affirmative.  As a result, I would allow the appeal and restore the sentence imposed by the trial judge.

II.  Chronology of Events

6                                   The accused has a long history of mental illness, as well as a  lengthy history of dangerous handling of explosives.  The combination of both makes him potentially extremely dangerous to himself and to others.  As a matter of fact, the psychiatrists were unanimous that the appellant’s criminal conduct was causally linked to his mental disorder.  The appellant’s illness goes back to his early childhood.  He received some psychiatric attention as a child and continued to experience mental distress throughout his adolescence and adult life.  Dr. Tweddle, a forensic psychiatrist at the Alberta Hospital Edmonton, testified that the appellant presents an unusual case of longstanding deeply ingrained personality difficulties with features of obsessive compulsiveness and depression.  He  has fantasies about violent matters.  He has had an interest in weapons, and his preoccupation with explosives is related to his wanting to overcome his feelings of being overwhelmed, rejected and belittled.  Moreover, he obviously does not just keep these ideas to fantasies, but has operationalized them and as a result was diagnosed by Dr. Tweddle as potentially extremely dangerous.  Dr. Tweddle concluded that he would be best treated in a hospital setting, where he can be both medicated and involved in long term psychotherapy, as well as in occupational and social skills training, with a view to enhancing his self-awareness and self-control and laying the groundwork for his eventual reintegration into the community. 

7                                   The appellant also has a long history of treatment.  In recent years, he received out-patient psychiatric treatment as a requirement of a probation order in force against him between 1993 and 1996 as a result of his conditional discharge  for the offence of possession of a weapon for a purpose dangerous to the public peace, contrary to then s. 87  of the Criminal Code .  His treating psychiatrist, Dr. Otakar Cadsky, testified that his attendance, in compliance with that order, was not perfect, but was “for mentally ill patients about as good as you can expect”.  He missed five appointments and attended 45 sessions.  Dr. Cadsky testified that his attendance for treatment is considerably more satisfactory when it is the result of a compulsory court order.  Dr. Cadsky was treating the appellant, on an out-patient basis, at Forensic Assessment and Community Services, the out-patient department of the Alberta Hospital Edmonton’s Forensic Service.  In the course of that therapy, the appellant was certified by Dr. Cadsky and admitted to the hospital for a six-week period in 1994.  Once again, in June of 1996, the appellant was certified and hospitalized, with a diagnosis of major depression.  After the expiration of the probation order, Dr. Cadsky continued to see the appellant on an out-patient basis until June of 1997, at which time the appellant ceased his treatment.  In February 1998, following an accident with a detonator device, in which the appellant injured his finger, the appellant sought treatment again from Dr. Cadsky, whom he saw twice as an out-patient before again ceasing treatment. 

8                                   The appellant was arrested on the current charges on July 22, 1998.  He was immediately admitted to the Alberta Hospital Edmonton pursuant to an assessment order directing an evaluation of his fitness to stand trial.  With his consent, his “remand status” was extended at the request of the attending psychiatrist, Dr. Vijay Singh.  A further extension was requested on September 16 and finally, on October 22, 1998, the appellant was certified under the Alberta Mental Health Act, S.A. 1988, c. M-13.1. 

9                                   The appellant overtly supported the proposed course of treatment.  Overall, he remained at the Alberta Hospital Edmonton under residential psychiatric care for the five months prior to his appearance before Chrumka Prov. Ct. J. for sentencing.  

10                               At the sentencing hearing, the two forensic psychiatrists called to testify advocated a continued psychiatric residential treatment program under court order.  The trial judge sentenced the appellant to a conditional sentence of two years less a day followed by a three-year probation period.  The salient condition of his conditional sentence was that the appellant was to reside at the Alberta Hospital Edmonton in a locked secure psychiatric treatment unit where he was currently receiving treatment, until a consensus of psychiatric professionals made a decision to transfer him from that locked unit.  The condition further stipulated that if he were transferred from that locked unit, the appellant was to reside at such treatment facility as directed by Dr. Tweddle or her successor or designate.

11                               The terms of his probation for three years also required that the appellant reside at such treatment facility as directed by Dr. Tweddle, and that he enter into and diligently pursue any treatment, counselling or therapy as directed by his probation officer, including attendance at Forensic Assessment. 

12                               The appellant remained under residential psychiatric care at the Alberta Hospital Edmonton until the Court of Appeal reversed the conditional sentence imposed by the trial judge and ordered his incarceration for two years less a day with the recommendation that it be served at Fort Saskatchewan Provincial Correctional Institute, where the court felt that the appellant would be able to access treatment opportunities and facilities similar to the ones that he had already experienced.  That decision was made on March 2, 1999.  Seven months later, the appellant was granted full parole by the National Parole Board.  As a condition of his parole, he was moved to the Alberta Hospital Edmonton where he resumed his residential treatment.  The National Parole Board’s pre-release decision indicates that he is eligible for leave with the permission of the ward psychiatrist or delegate, in consultation with the community parole officer.

13                               It is argued that the conditional sentence imposed by the trial judge is not permissible under the Criminal Code  because of the appellant’s dangerousness, and because it requires that the appellant be kept in the custody of an institution.

14                               In order to examine these issues, I now turn to the factual elements that illustrate the conceded dangerousness of this offender.

III.  Factual Background

15                               In support of the guilty plea, a lengthy agreed statement of facts was introduced at trial and was summarized as follows by the Court of Appeal, at pp. 290-91:

The [appellant Knoblauch] was employed by the City of Edmonton, Department of Transportation.  On July 21, 1998 the [appellant] approached a co‑worker and apologized for a remark that he had made the previous day. He stated that he thought about getting a dog and blowing it up because it might calm him down. He pulled a gym bag from his car and opened it. Inside was a litre size jar with wires extending from it, that appeared, to the co‑worker, to be a bomb. The jar contained a fluid and was three‑quarters full. The following day, when the [appellant] did not appear for work, the police were notified. The police responded to his residence and noted that the apartment was in state of disarray with PVC pipes, electrical components, wires and transistors on the livingroom floor and kitchen table. A search warrant was obtained. The apartment contained numerous electrical component systems, parts, and an electronic technician‑type workbench complete with tools and diagnostic equipment. In addition, there was literature relating to the construction and preparation of explosive devices and literature on the Oklahoma City bombing and Waco, Texas armed standoff.

In the [appellant]'s vehicle was a suicide bomb. The only requirement for the device to deploy was the movement of the switch by the operator or victim. In the car were explosive substances, including two 500 ml bottles containing nitro‑methane and picric acid, chemicals, which are extremely unstable in nature. Also located in the vehicle was a duffle bag with a container of 37% formaldehyde; 500 ml of sodium nitrate; 500 grams of sulphuric acid; 500 ml of lead  nitrate; and 500 ml of picric acid; and 150 ml of glycerine and various other chemicals. The chemicals found in the vehicle have capability on their own, or in combination, to form highly explosive substances and could have been used to create an arsenal of devices.

Similar chemicals were located inside the residence, including two 80 lb bags of ammonia nitrate and two pipe bombs. Three detonators were seized including one that had been exploded.

The bomb inside the vehicle, if detonated, would have destroyed the vehicle and killed the person activating the device. The debris would have caused damage to cars, buildings and injured anyone within a 75 metre radius. The two 80 lb bags of ammonia nitrate, if mixed with fuel oil and detonated in the [appellant]'s suite, would have damaged the suites two to three floors above and two to three on either side, as well as cars parked along the street and houses across the street. Anyone in the area would be killed or seriously injured.

The [appellant] had in his vehicle and in his apartment an arsenal capable of causing mass destruction to property, death and serious injury to persons in the area indiscriminately. After viewing the contents of the vehicle and the apartment, the police requested the assistance of the Edmonton Emergency Response Department Dangerous Goods team and a private chemical disposal firm. The firm declined to assist with some of the chemicals due to the unstable explosive nature and toxicity of the chemicals.

The [appellant], at the time of the offences, was prohibited from  being in possession of weapons and explosives. [He] received a conditional discharge and three years’ probation plus a firearms prohibition for ten years on November 29, 1993 for a charge under [then] s. 87  of the Criminal Code . This charge arose when [the appellant] brought a gun to work intending to shoot a co‑worker.

16                               Before turning to an examination of the applicable law, I wish to stress two important aspects of this case.  The first one is that it is beyond dispute that the appellant is potentially extremely dangerous.  The second is that it is equally beyond dispute that the appropriate sentence for this appellant, in all of the circumstances, is a sentence of two years less a day, whether it is served in a penal institution or in a mental health hospital.  These are critical facts to keep in mind.  There is no mechanism in criminal law to remove dangerous people from society merely in anticipation of the harm that they may cause.  The limit of the reach of the criminal sanction is to address what offenders have done.  At that stage, dangerousness is but one factor to be considered in the assessment of the appropriate sentence.  Even extreme dangerousness cannot, in and of itself, justify imposing the maximum punishment in order to elevate the protection of society above all other considerations.  That explains why in this case both the trial judge and the Court of Appeal were of the view, which has not been disputed before us, that considering all the circumstances, the appropriate punishment for this offender would have been a sentence of three years of incarceration which was properly reduced to two years less a day to take into account the period spent in pre-trial custody. 

17                               It is in this context that we must embark upon an analysis of the framework contemplated by the Criminal Code  to fashion an appropriate, just, fair and intelligent sentence for the appellant.

IV.  The Conditional Sentence Regime

18                               For ease of reference, I have attached as an appendix to these reasons the  relevant Criminal Code  provisions, including the unproclaimed sections dealing with  hospital orders.

19                               The principles governing the imposition of conditional sentences are set out in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5.  Neither the trial judge nor the Court of Appeal had the benefit of that decision.  Lamer C.J. introduced his extensive reasons in Proulx, at para. 1, by the following:

By passing the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C-41”), Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison.  In an attempt to remedy the problem of overincarceration, Parliament has introduced a new form of sentence, the conditional sentence of imprisonment.

20                               Before that, in R. v. Gladue, [1999] 1 S.C.R. 688, Cory and Iacobucci JJ. underlined the significance of the enactment of the major reform of sentencing principles which included the novel mechanism of conditional sentences.  They also underlined, at para. 48, the two principal objectives pursued by Parliament in this important sentencing reform: to reduce the use of imprisonment and to increase recourse to restorative justice principles in sentencing.

21                               Section 742.1 of the Code, which provides for the imposition of conditional sentences, is therefore a core provision to the sentencing reform of 1995 and is linked to other provisions which command restraint in the use of incarceration, such as s. 718.2(d) and (e), as well as to the fundamental purpose of sentencing expressed in s. 718 of the Code, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

22                               Section 742.1  of the Criminal Code  provides as follows: 

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.

23                               Expanding on the nature of conditional sentences, Lamer C.J. in Proulx, supra, said the following, at paras. 21 and 22:

The conditional sentence was specifically enacted as a new sanction designed to achieve both of Parliament’s objectives.  The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders.  The offenders who meet the criteria of s. 742.1  will serve a sentence under strict surveillance in the community instead of going to prison.  These offenders’ liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code.  In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6.  If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.  Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender.  However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.  It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn. [Emphasis in original.]

24                               Having distinguished conditional sentences from probation, Lamer C.J. then turned to the differences between conditional sentences and incarceration.  He said, at para. 41:

This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration.  As this Court stated in Gladue, supra, at para. 72:

... in our view a sentence focussed on restorative justice is not necessarily a “lighter” punishment.  Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

25                               It is against this background that we must now turn to the availability of a conditional sentence in the present case.  There is no dispute, as I indicated earlier, that a sentence of two years less a day was a fit and appropriate sentence in all the circumstances.  The first criterion in s. 742.1 of the Code having been satisfied, it remains only to be decided whether the trial judge was entitled to conclude that “serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing”, in accordance with s. 742.1 (b). 

26                               This condition was also examined in some detail in Proulx, albeit without this particular factual scenario in mind.  The Court held that s. 742.1 (b) was a prerequisite to any conditional sentence, in the sense that alternatives to incarceration  must be abandoned if the judge is not satisfied that the safety of the community can otherwise be preserved.  The criterion of the safety to the community is therefore a condition precedent to the determination of whether a conditional sentence  serves the general purposes of sentencing expressed in ss. 718 to 718.2.  On this point, I think it is important to stress that the section does not exclude “dangerous offenders” from access to conditional sentences.  Rather, as expressed by Lamer C.J. in Proulx, at para. 68,  “the focus of the analysis at this point should clearly be on the risk posed by the individual offender while serving his sentence in the community” (emphasis added).  The danger to the community is then evaluated by reference to: (1) the risk  of re-offence; and (2) the gravity of the damage in the event of re-offence.  See Proulx, at para. 69.

27                               I think it is fair to say that in the present case the gravity of the damage  in the case of re-offence could be extreme.  Although the appellant did not set off any explosive substance, he was in possession, in extremely dangerous circumstances, including in his car, of substances that could easily ignite and even accidentally explode, thereby causing extremely serious personal injury and death.  In such a case, I am of the view that the risk of re-offending while under conditional sentence should be no greater than if the appellant was incarcerated in a penal institution before the two branches of the test could safely be met.  I now turn to the risk of re-offence.  Here I believe the decision in Proulx is again of great assistance.  At para. 72, Lamer C.J. said:

The risk of re-offence should also be assessed in light of the conditions attached to the sentence. Where an offender might pose some risk of endangering the safety of the community, it is possible that this risk be reduced to a minimal one by the imposition of appropriate conditions to the sentence: see Wismayer, supra, at p. 32; Brady, supra, at para. 62; Maheu, supra, at p. 374 C.C.C.  Indeed, this is contemplated by s. 742.3(2)(f), which allows the court to include as optional conditions “such other reasonable conditions as the court considers desirable... for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences”.  For example, a judge may wish to impose a conditional sentence with a treatment order on an offender with a drug addiction, notwithstanding the fact that the offender has a lengthy criminal record linked to this addiction, provided the judge is confident that there is a good chance of rehabilitation and that the level of supervision will be sufficient to ensure that the offender complies with the sentence.

28                               In my view, if the conditions contemplated by the trial judge are taken into account in evaluating the risk that the appellant would re-offend while serving his conditional sentence, that risk is reduced to a point that it is no greater than the risk that the appellant would re-offend while incarcerated in a penal institution.  The sentence fashioned by the trial judge provided that the appellant would be in a locked, secure psychiatric facility, in the care and custody of forensic psychiatrists who were well aware of his history, and who by no means minimized his dangerousness.  They would have been vested with the authority to determine the pace and method of his gradual release and reintegration into society, ultimately through the probation order. 

29                               In contrast, his incarceration in a penal institution, subject as it is to the provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20 , could require his earlier release, or, in any event, would most likely leave him considerably less well prepared for facing his renewed liberty.  Therefore, it seems to me that whether the appellant is incarcerated in a penal institution, subject to the release power of the Parole Board, or whether he is made to reside in a locked secure psychiatric facility, subject to the supervisory release authority of a consensus of psychiatrists, it cannot be said that he would be a greater danger to the community during that time under one regime rather than the other.

30                               The dangerousness of the appellant is a product of the combined effect of his mental illness and his ability to acquire and make use of explosive materials and devices.  Incarceration precludes the latter, but does little to address his mental illness.

31                               Conditions of a sentence to be served outside a prison, that address both sources of the appellant’s dangerousness, in my view reduce his being a danger to the community as much as if not more than a sentence of incarceration would, both while the sentence is in place, and even more so afterwards.  The fact, underscored and relied upon by the Court of Appeal, at pp. 293-94, as the basis for varying the sentence imposed by Chrumka Prov. Ct. J., that at large, untreated and unsupervised the appellant is an “extreme danger to the community” is wide off the mark.  Under the conditions imposed by the trial judge, the appellant is no more a threat to the community while serving his conditional sentence  than he would be if incarcerated.  In the long term, a conditional sentence becomes even more clearly the preferable course of action.  There was uncontradicted evidence before Chrumka Prov. Ct.  J. that not only would incarceration be unlikely to address the causes of the appellant’s dangerousness, but the carceral environment was likely to aggravate his condition.  Dr. Tweddle said:

The other aspect, the other thing that actually concerns me very much about Mr. Knoblauch is the environment in a gaol.  The very situations that make him worse, the areas that make him ruminate and — and want to get back at the world are day to day activities and — and the — you know the regular atmosphere in a gaol, particularly penitentiary where it’s an extremely hostile place, where the men are very abusive to one another, where they’re both verbally and physically abusive, they’re very competitive with their — their sort of weight lifting and — and the sort of the epitome of the — at least the external appearance of macho behaviour.

And of course it’s a very authoritative place.  He would be — he would be told and ordered to do things on a day to day, minute by minute basis and I think these are the very things that have been the triggers, the areas of difficulty that have created the problems within Mr. Knoblauch and — and that he then takes into himself and ruminates on endlessly until he — he thinks of ways to fight back and regain a perceived power over what is — what is happening to him.

Q: Can you express an opinion as to how you think he would respond to that environment?

A: My — my opinion is that — that it would likely make him worse.  I think — I think it would be a very destructive environment for him.  I think he would find it extremely difficult to — to cope in that environment and it would, in a sense feed into all of the prejudices that he has.  It would confirm that — that authority is controlling people and belittling people and so I think it would actually be a very poor environment for him.

32                               Assuming that the conditions imposed by the trial judge were available to him as a matter of law, I believe that it was open to him to conclude that the condition precedent expressed in s. 742.1 (b) was met.  The critical issue is therefore to determine whether it was open to the trial judge to impose the type of restriction on the liberty of the appellant that he did in order to reduce the risk of re-offence to the minimal level.  It is to this issue that I now turn.

V.  Custodial v. Non-Custodial Sentences

33                               The respondent submits that conditional sentences were intended by Parliament to be non-custodial and that a conditional sentence to be served in the secure area of a psychiatric hospital is contrary to the principles involved in the conditional sentence provisions of the Code.  There is support in Proulx for the view that a conditional sentence is an alternative to a custodial one, and not only to strict imprisonment.  In particular, at para. 40, it is suggested that conditional sentences are designed to be served in non-institutional settings:

Although a conditional sentence is by statutory definition a sentence of imprisonment, this Court . . . [has] recognized that there “is a very significant difference between being behind bars and functioning within society while on conditional release”. . . . Indeed, offenders serving a conditional sentence in the community are only partially deprived of their freedom.  Even if their liberty is restricted by the conditions attached to their sentence, they are not confined to an institution and they can continue to attend to their normal employment or educational endeavours.  They are not deprived of their private life to the same extent.  Nor are they subject to a regimented schedule or an institutional diet. [Emphasis added.]

See also Proulx, at para. 95. 

34                               The issue was not squarely raised in Proulx.  The passage quoted was part of the analysis under which Lamer C.J. was contrasting conditional sentences with probation orders on the one hand, and incarceration on the other.  However, Lamer C.J. did not have to decide, as we do in this case, whether the order that the accused serve all or part of his conditional sentence in a secure residential setting, not only with his consent but indeed at his request, was precluded under ss. 742.1  and 742.3 .  In my view it is not. 

35                               As indicated earlier, conditional sentences were designed by Parliament as a desirable alternative to incarceration.  In my opinion, one must distinguish between incarceration or imprisonment in either prisons or penitentiaries, and other custodial or residential arrangements, whether secure or not, and whether consensual or compulsory, but which may form an acceptable alternative to incarceration. 

36                               The conditions that may be attached to a conditional sentence under the Criminal Code  are not exhaustively enumerated and call for a large measure of discretion.  Some are compulsory, as provided by s. 742.3(1) .  In addition, broad discretion is conferred upon the sentencing court by s. 742.3(2) (f).  Assuming that the conditions precedent to the imposition of a conditional sentence are met, nothing in s. 742.3  precludes resorting to community-based facilities, even residential ones, simply because they have a custodial aspect, as long as they can be seen as a genuine alternative to incarceration.

37                               The alternative to incarceration that Parliament contemplates is the alternative not to a particular place or building, but to a regime of detention, program and release, governed by legislation such as the Corrections and Conditional Release Act .  In my view, that is the only way of distinguishing between incarceration and conditional sentences.

38                               Incarceration or imprisonment is a form of punishment governed by the  Corrections and Conditional Release Act .  Under that legislation, the degree of restriction on freedom of movement imposed on an inmate varies depending on the classification of the offender (s. 30 ) and the type of institution in which he or she will be incarcerated.  A person incarcerated in a minimum security institution has  considerable freedom.  Yet that person is incarcerated, serving a term of imprisonment within the meaning of the Criminal Code , and may be found guilty of being unlawfully at large if he or she disobeys the constraints imposed upon him or her. 

39                               Under the Corrections and Conditional Release Act , a “penitentiary” is a facility operated for the care and control of inmates by the Correctional Service of Canada and may include any prison, or any hospital, so designated by order of the Commissioner and any other place so designated by the Governor in Council (s. 2(1)).  Under the Act, temporary absences may be authorized (s. 17 ).  This in my view makes abundantly clear that incarceration or imprisonment as a form of punishment is a regime that may not require a total restriction on freedom of movement.

40                               If one were to capture the essence of imprisonment, it might be best done by emphasizing the involuntary constraints than by pointing out the actual degree of confinement.  In R. v. Degan (1985), 20 C.C.C. (3d) 293 (Sask. C.A.), the court held that a person who is required by the terms of a probation order to reside in a community training residence designated as a “correctional facility” under the then Corrections Act,  R.S.S. 1978, c. C-40, s. 2(f), is not imprisoned.  Vancise J.A., speaking for the court, said at pp. 299-300:

In the present circumstances, the provincial court judge placed the appellant on probation and imposed a residential restriction, that is a requirement that he live at the Saskatoon Training Residence.  The appellant was, at the time of sentencing, represented by counsel and at the time the sentence was imposed, impliedly, if not expressly, agreed or at the very least acquiesced to the terms and conditions of the probation order imposed by the provincial court judge.  Specifically he agreed or acquiesced in the residency requirement.  His living voluntarily at the Saskatoon Training Residence has a strong element of choice in the sense that he could have chosen to have the judge sentence him instead of suspending the passing of sentence.  Imprisonment carries with it a complete lack of choice.  There must be an involuntary element to the confinement before it can be said to be a restraint on the personal liberty or freedom of the appellant.

41                               In the case of a conditional sentence, a regime uniquely suited to the offender is put in place by the terms of the order under which the conditional sentence is imposed.  It is tailored to take into account the needs of the offender and those of the community into which he will need to be reintegrated.  In my view, this includes taking full advantage of all community-based services, including residential programs, and including residential programs that may have a compulsory residential element, as long as the programs serve the ends expressed in s. 718  of the Criminal Code .  When properly viewed as an alternative to incarceration as previously defined, conditional sentences do not preclude the resort to community-based facilities, some of which are residential, simply because they have a custodial aspect.  Mental health facilities exist within our communities, and some of them offer residential programs which can clearly be an optional condition under s. 742.3(2) (f).  The intent of s. 742.1  is to invite courts to draw on all available services in the community to act as an alternative to imprisonment in penal institutions.

42                               As the present case illustrates, a person may be confined in a locked secure  mental health facility under various legal provisions.  The person may have been the subject of a civil committal under the provisions of an applicable provincial mental health legislation, he or she may have been remanded by a criminal court for assessment, or he or she may have entered such programs voluntarily.  The person may be there as part of the terms of a probation order, or under conditions set out by the National Parole Board.  As indicated earlier, a person may also be there serving a term of imprisonment, if that part of the hospital has been designated a penitentiary within the meaning of the Corrections and Conditional Release Act .  In my view, the person may also be there under a condition of a conditional sentence, at least one to which he or she consented.

43                               I stress that in this case the accused not only agreed to but advocated the terms that were imposed upon him by the sentencing judge, which included his confinement in a locked mental health institution.  Whether a lock-up in a mental institution for two years against the will of an accused would have any therapeutic value, and  whether it would be permissible under the Code, should be left for another day.

44                               Referring to the unproclaimed hospital orders provisions of Bill C-41, the respondent submits that the legislative history of that bill reveals that Parliament did not intend s. 742.3(2) to empower sentencing judges to “allow a person to, in effect, be sentenced to a mental hospital” (respondent’s factum, at para. 52).  The respondent relies on the fact that provisions were included in  Bill C-41 (ss. 747-747.8,  reproduced in the appendix) that, it claims, dealt specifically with the type of sentencing order made by Chrumka Prov. Ct. J., and that these provisions were never proclaimed.  I do not agree.  Had these provisions been enacted, I do not believe that they would have had any bearing on the availability of residential treatment in a psychiatric facility under the terms of a conditional sentence.  Section 747.1(1), for example, would have empowered a court to order that “an offender be detained in a treatment facility as the initial part of a sentence of imprisonment [i.e., not a conditional sentence]” (emphasis added).  Further, s. 747.1(1) would limit a court’s authority to make such  orders to situations where the offender’s mental disorder was in an “acute phase”, such that “immediate treatment” was “urgently required to prevent further significant deterioration” or “to prevent the offender from causing serious bodily harm to any person”.  As well, “a single period of treatment” could not exceed 60 days (s. 747.1(2)).

45                               As these prerequisites and limits reveal, the hospital orders provisions were designed to prepare an offender, for whom a conditional sentence was inappropriate, for a lengthy stay in a penitentiary, and not to realize some or all of the restorative justice objectives which underlie and inform the conditional sentence regime. 

46                               Finally, the respondent argues that the use of conditional sentences to confine persons to psychiatric hospitals will have serious resource implications for the provinces.  There is nothing in the material before us, in which only the Alberta Mental Health Board intervened, to suggest that the interpretation given by Chrumka Prov. Ct. J. to ss. 742.1 and 742.3 of the Code would create a non-manageable drain on resources.  If successful, the alternative measures to incarceration will reduce the rate at which offenders are imprisoned and particularly will reduce the rate of incarceration in provincial correctional facilities where sentences under two years are served, obviously creating a substantial saving of public funds. 

47                               In Proulx, supra, this Court directed that sentencing judges consider the available resources in the community in which the sentence is to be served before imposing conditions that draw on community resources.  This is what Chrumka Prov. Ct. J. did in this case.

VI.  Conclusion

48                               I would allow the appeal and restore the sentence imposed by the trial judge.  This was a legal and fit sentence and the one that best served the objectives of sentencing expressed in s. 718  of the Criminal Code .  Moreover, it was the sentence that best ensured that the dangerousness of the appellant would be curtailed for the longest period of time, with both short-term and long-term benefits to the community at large.

                                                           APPENDIX

Relevant Statutory Provisions

Criminal Code, R.S.C., 1985, c. C-46 

718.  The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

                               (c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1  A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2  A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or child,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718  to 718.2 ,

the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.

742.3 (1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:

(a) keep the peace and be of good behaviour;

(b) appear before the court when required to do so by the court;

(c) report to a supervisor

(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and

(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;

(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and

(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

(2) The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:

(a) abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription;

(b) abstain from owning, possessing or carrying a weapon;

(c) provide for the support or care of dependants;

(d) perform up to 240 hours of community service over a period not exceeding eighteen months;

(e) attend a treatment program approved by the province; and

(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

742.6 . . .

(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may

(a) take no action;

(b) change the optional conditions;

(c) suspend the conditional sentence order and direct

(i) that the offender serve in custody a portion of the unexpired sentence, and

(ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or

(d) determine the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

The “Hospital Orders” Provisions of the Criminal Code, S.C. 1995, c. 22, s. 6 (unproclaimed)

747. In this section and sections 747.1 to 747.8,

"assessment report" means a written report made pursuant to an

assessment order made under section 672.11 by a psychiatrist who is entitled under the laws of a province to practise psychiatry or, where a psychiatrist is not practicably available, by a medical practitioner;

"hospital order" means an order by a court under section 747.1 that an

offender be detained in a treatment facility;

                                                                    ...

"treatment facility" means any hospital or place for treatment of the

mental disorder of an offender, or a place within a class of such places, designated by the Governor in Council, the lieutenant governor in council of the province in which the offender is sentenced or a person to whom authority has been delegated in writing for that purpose by the Governor in Council or that lieutenant governor in council.

747.1 (1) A court may order that an offender be detained in a treatment facility as the initial part of a sentence of imprisonment where it finds, at the time of sentencing, that the offender is suffering from a mental disorder in an acute phase and the court is satisfied, on the basis of an assessment report and any other evidence, that immediate treatment of the mental disorder is urgently required to prevent further significant deterioration of the mental or physical health of the offender, or to prevent the offender from causing serious bodily harm to any person.

(2) A hospital order shall be for a single period of treatment not exceeding sixty days, subject to any terms and conditions that the court considers appropriate.

                                                                   . . .

747.2 (1) In a hospital order, the court shall specify that the offender be detained in a particular treatment facility recommended by the central administration of any penitentiary, prison or other institution to which the offender has been sentenced to imprisonment, unless the court is satisfied, on the evidence of a medical practitioner, that serious harm to the mental or physical health of the offender would result from travelling to that treatment facility or from the delay occasioned in travelling there.

(2) Where the court does not follow a recommendation referred to in subsection (1), it shall order that the offender be detained in a treatment facility that is reasonably accessible to the place where the accused is detained when the hospital order is made or to the place where the court is located.

747.3 No hospital order may be made unless the offender and the person in charge of the treatment facility where the offender is to be detained consent to the order and its terms and conditions, but nothing in this section shall be construed as making unnecessary the obtaining of any authorization or consent to treatment from any other person that is or may be required otherwise than under this Act.

747.4  No hospital order may be made in respect of an offender

(a) who is convicted of or is serving a sentence imposed in respect of a conviction for an offence for which a minimum punishment of imprisonment for life is prescribed by law;

(b) who has been found to be a dangerous offender pursuant to section 753;

(c) where the term of imprisonment to be served by the offender does not exceed sixty days;

(d) where the term of imprisonment is imposed on the offender in default of payment of a fine or of a victim fine surcharge imposed under subsection 737(1); or

(e) where the sentence of imprisonment imposed on the offender is ordered under paragraph 732(1)(a) to be served intermittently.

747.5 (1) An offender shall be sent or returned to a prison to serve the portion of the offender's sentence that remains unexpired where

(a) the hospital order expires before the expiration of the sentence; or

(b) the consent to the detention of the offender in the treatment facility pursuant to the hospital order is withdrawn either by the offender or by the person in charge of the treatment facility.

(2) Before the expiration of a hospital order in respect of an offender, the offender may be transferred from the treatment facility specified in the hospital order to another treatment facility where treatment of the offender's mental disorder is available, if the court authorizes the transfer in writing and the person in charge of the treatment facility consents.

747.6  Each day that an offender is detained under a hospital order shall be treated as a day of service of the term of imprisonment of the offender, and the offender shall be deemed, for all purposes, to be lawfully confined in a prison during that detention.

747.7 Notwithstanding section 12 of the Corrections and Conditional Release Act , an offender in respect of whom a hospital order is made and who is sentenced or committed to a penitentiary may, during the period for which that order is in force, be received in a penitentiary before the expiration of the time limited by law for an appeal and shall be detained in the treatment facility specified in the order during that period.

747.8 Where a court makes a hospital order in respect of an offender, the court shall cause a copy of the order and of the warrant of committal issued pursuant to subsection 747.1 to be sent to the central administration of the penitentiary, prison or other institution where the term of imprisonment imposed on the offender is to be served and to the treatment facility where the offender is to be detained for treatment.

The reasons of L’Heureux-Dubé, Gonthier and Bastarache JJ. were delivered by

Bastarache J. (dissenting) —

I.  Introduction

49                               The introduction of the conditional sentence in 1996 allows for certain offenders who would normally have been sentenced to prison to serve their sentences in the community.  The central issue in this case is whether the existing conditional sentencing scheme permits a sentencing judge to impose a conditional sentence to be served in a locked psychiatric institution.  The more narrow issue to be decided is whether the preconditions at s. 742.1  of the Criminal Code, R.S.C., 1985, c. C-46 , for imposing a conditional sentence, were met in the circumstances of this case.  I caution at the outset that, in attempting to resolve these issues, the question is not whether we would agree with the sentencing judge that the appellant is better off receiving psychiatric care in a locked psychiatric ward than in prison but whether such a condition can even form the basis of a conditional sentencing order.

50                               I have concluded that the Court of Appeal was correct in overturning the conditional sentence in this case.  The conditional sentence was inappropriate both because the precondition that the appellant not endanger the safety of the community was not satisfied and because the conditional sentencing regime does not contemplate serving a sentence in a locked psychiatric unit of a hospital.

II.  Factual Background

51                               The appellant is a mentally ill offender who constructed elaborate explosive devices which could have caused mass destruction to property, serious injury to persons or death.  On July 20, 1998, the appellant stated to a co-worker at Edmonton’s Department of Transportation that he had thought about blowing up a dog to calm himself.  The next day, while apologizing to the co-worker, the appellant pulled a gym bag from his car to show the co-worker its contents.  Inside the bag was a jar filled with fluid and wires which the co-worker believed to be a bomb.  The following day, the appellant was absent from work and the police were notified.

52                               The police went to the appellant’s apartment and found it in disarray with PVC pipes, electrical components, wires and transistors in the living room and in the kitchen.  A search warrant was obtained and the police found electrical components, systems, tools and diagnostic equipment, as well as literature pertaining to the construction and preparation of explosive devices, on the Oklahoma City bombing and on the Waco, Texas armed standoff.  The police also found two pipe bombs, two unused detonators, one used detonator and enough ammonia nitrate to damage the appellant’s apartment and apartments two to three stories above and two or three away to the sides of his apartment.  A suicide bomb, capable of destroying the vehicle and injuring people and damaging property within a 75-metre radius, was also found in the appellant’s vehicle along with extremely unstable explosive substances and toxic chemicals.  The sole requirement for the suicide bomb to deploy was the movement of a switch by the operator or a victim.  All persons in the surrounding area would have been killed or seriously injured.

53                               The appellant was charged with two offences:  unlawful possession of an explosive substance contrary to s. 100(12) of the Code, and unlawful possession of a weapon for a purpose dangerous to the public peace contrary to s. 87 of the Code.  The appellant entered a guilty plea to both charges.  He was held in a secured psychiatric unit of the Alberta Hospital Edmonton (the “Alberta Hospital”) while awaiting sentencing.

54                               At the sentencing hearing, it was revealed that the appellant was subject to a prohibition order at the time these offences were committed, prohibiting him from possessing firearms, ammunition and explosives because of a 1993 incident where he brought a firearm to work with the intent of shooting a co-worker.  He was charged under s. 87 of the Code and received a conditional discharge, three years’ probation, and a 10-year firearms prohibition.  In January 1998, the appellant had also injured his finger while building a detonator device.

55                               At the sentencing hearing, the appellant’s attending physician testified that the appellant suffers from depression and a personality disorder with obsessive compulsive and paranoid features.  The medical evidence also established that the appellant was engaged in dangerous activity in the past even while undergoing treatment and that he had previously been an in-patient at the Alberta Hospital.  Pursuant to s. 742.1 of the Code, Judge Chrumka, of the Alberta Provincial Court, ordered a conditional sentence of two years less a day to be served in a locked psychiatric treatment unit of the Alberta Hospital until a consensus was reached among psychiatrists that the appellant could be transferred out of the locked unit.  The Court of Appeal substituted a sentence of three years in a penitentiary, which it reduced to two years less a day in recognition of the time the appellant had already spent in custody.  It also ordered a three-year probation period subject to substantially the same terms and conditions imposed by Chrumka Prov. Ct. J.

56                               The appellant has already served eight months of the penitentiary sentence ordered by the Court of Appeal and is currently on parole.  One of the conditions of his parole order is that he reside at the psychiatric unit of the Alberta Hospital where his movements will be tightly controlled.

III.  Relevant Statutory Provisions

57                               Criminal Code, R.S.C., 1985, c. C-46 

718.  The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1  A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2  A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or child,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

742.1  Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718  to 718.2 ,

the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.

742.3  (1)  The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:

(a) keep the peace and be of good behaviour;

(b) appear before the court when required to do so by the court;

(c) report to a supervisor

(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and

(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;

(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and

(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

(2)  The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:

(a) abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription;

(b) abstain from owning, possessing or carrying a weapon;

(c) provide for the support or care of dependants;

(d) perform up to 240 hours of community service over a period not exceeding eighteen months;

(e) attend a treatment program approved by the province; and

(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

The “Hospital Orders” Provisions of the Criminal Code, S.C. 1995, c. 22, s. 6 (not yet in force)

747.  In this section and sections 747.1 to 747.8,

“assessment report” means a written report made pursuant to an

assessment order made under section 672.11 by a psychiatrist who is entitled under the laws of a province to practise psychiatry or, where a psychiatrist is not practicably available, by a medical practitioner;

“hospital order” means an order by a court under section 747.1 that an

offender be detained in a treatment facility;

                                                                   . . .

“treatment facility” means any hospital or place for treatment of the mental

disorder of an offender, or a place within a class of such places, designated by the Governor in Council, the lieutenant governor in council of the province in which the offender is sentenced or a person to whom authority has been delegated in writing for that purpose by the Governor in Council or that lieutenant governor in council.

747.1  (1)  A court may order that an offender be detained in a treatment facility as the initial part of a sentence of imprisonment where it finds, at the time of sentencing, that the offender is suffering from a mental disorder in an acute phase and the court is satisfied, on the basis of an assessment report and any other evidence, that immediate treatment of the mental disorder is urgently required to prevent further significant deterioration of the mental or physical health of the offender, or to prevent the offender from causing serious bodily harm to any person.

(2)  A hospital order shall be for a single period of treatment not exceeding sixty days, subject to any terms and conditions that the court considers appropriate.

                                                                   . . .

747.2  (1)  In a hospital order, the court shall specify that the offender be detained in a particular treatment facility recommended by the central administration of any penitentiary, prison or other institution to which the offender has been sentenced to imprisonment, unless the court is satisfied, on the evidence of a medical practitioner, that serious harm to the mental or physical health of the offender would result from travelling to that treatment facility or from the delay occasioned in travelling there.

(2)  Where the court does not follow a recommendation referred to in subsection (1), it shall order that the offender be detained in a treatment facility that is reasonably accessible to the place where the accused is detained when the hospital order is made or to the place where the court is located.

747.3  No hospital order may be made unless the offender and the person in charge of the treatment facility where the offender is to be detained consent to the order and its terms and conditions, but nothing in this section shall be construed as making unnecessary the obtaining of any authorization or consent to treatment from any other person that is or may be required otherwise than under this Act.

747.4  No hospital order may be made in respect of an offender

(a) who is convicted of or is serving a sentence imposed in respect of a conviction for an offence for which a minimum punishment of imprisonment for life is prescribed by law;

(b) who has been found to be a dangerous offender pursuant to section 753;

(c) where the term of imprisonment to be served by the offender does not exceed sixty days;

(d) where the term of imprisonment is imposed on the offender in default of payment of a fine or of a victim fine surcharge imposed under subsection 737(1); or

(e) where the sentence of imprisonment imposed on the offender is ordered under paragraph 732(1)(a) to be served intermittently.

747.5  (1)  An offender shall be sent or returned to a prison to serve the portion of the offender’s sentence that remains unexpired where

(a) the hospital order expires before the expiration of the sentence; or

(b) the consent to the detention of the offender in the treatment facility pursuant to the hospital order is withdrawn either by the offender or by the person in charge of the treatment facility.

(2)  Before the expiration of a hospital order in respect of an offender, the offender may be transferred from the treatment facility specified in the hospital order to another treatment facility where treatment of the offender’s mental disorder is available, if the court authorizes the transfer in writing and the person in charge of the treatment facility consents.

747.6  Each day that an offender is detained under a hospital order shall be treated as a day of service of the term of imprisonment of the offender, and the offender shall be deemed, for all purposes, to be lawfully confined in a prison during that detention.

747.7  Notwithstanding section 12 of the Corrections and Conditional Release Act , an offender in respect of whom a hospital order is made and who is sentenced or committed to a penitentiary may, during the period for which that order is in force, be received in a penitentiary before the expiration of the time limited by law for an appeal and shall be detained in the treatment facility specified in the order during that period.

747.8  Where a court makes a hospital order in respect of an offender, the court shall cause a copy of the order and of the warrant of committal issued pursuant to subsection 747.1 to be sent to the central administration of the penitentiary, prison or other institution where the term of imprisonment imposed on the offender is to be served and to the treatment facility where the offender is to be detained for treatment.

IV.  Judicial History

A.  Alberta Provincial Court

58                               Chrumka Prov. Ct. J. held that a conditional sentence was suitable on the basis that the appellant’s behaviour was linked primarily to his mental illness.  He concluded that the appellant would not pose a danger to the community, provided the term “community” was defined as the secure psychiatric unit of the Alberta Hospital.  He imposed a conditional sentence of two years less a day, to which he attached the following conditions:

-      that the community be defined as the Alberta Hospital;

-      that the appellant report immediately to the Director of Forensic Services or his or her deputy at the Alberta Hospital;

-      that he remain within the jurisdiction of the court, absent written permission from the court or his supervisor to leave the jurisdiction;

-      that he notify the court or his supervisor of any change in address or employment;

-      that he remain in a locked, secure psychiatric treatment unit of the Alberta Hospital until a consensus of psychiatric professionals decides to transfer him from the locked unit;

-      if transferred from the locked unit of the Alberta Hospital, that he reside at such treatment facility as directed by Dr. Tweddle, his attending physician, or her designate or successor;

-      that he comply with all treatment programs and take all medications prescribed by Dr. Tweddle, or her designate or successor;

-      that he abstain from consuming alcohol or other intoxicating substances; and

-      that he abstain from possessing firearms, ammunition or explosive substances.

59                               Chrumka Prov. Ct. J. also ordered that the appellant be placed on three years’ probation following the completion of his conditional sentence, to which he attached a number of conditions, including:

-      that he pursue any treatment, counselling or therapy as directed by his probation officer, including attendance at Forensic Assessment;

-      that he reside at any address directed by Dr. Tweddle or her designate or successor if allowed to leave the locked unit;

-      that he refrain from the use of alcohol and intoxicating substances; and

-      with the appellant’s consent, Chrumka Prov. Ct. J. imposed a lifetime prohibition against the possession of any firearms, ammunition or explosive substances.

B.  Alberta Court of Appeal (1999), 232 A.R. 289

(a)  Nash J.A. (Cairns and O’Leary JJ.A. concurring)

60                               Nash J.A. held that the sentencing judge erred in granting a conditional sentence since the condition precedent, that the appellant not endanger the safety of the community, had not been met.  Nash J.A. cited the testimony of two forensic psychiatrists, Dr. Singh and Dr. Tweddle, who described the appellant as depressed, delusional, obsessive compulsive, angry, blaming, vengeful, lacking in social restraint, preoccupied with death, with violent thoughts of destruction and persecution, and with deeply ingrained personality difficulties.  Dr. Singh testified that the appellant’s mental illness coupled with his interest in explosives do not bode well for future public safety.  Dr. Tweddle testified that the appellant had “operationalized” fantasies of being powerful and this made him potentially dangerous.  She admitted that prior attempts at treating the appellant had failed and that his behaviour had escalated.  Nash J.A. also referred to the opinion of a third doctor, Dr. Cadsky, who maintained that the appellant posed a danger whether treated or not, and that his condition had deteriorated while undergoing treatment.

61                               Nash J.A. noted that there was evidence of the appellant’s non-compliance with a past court order, that the appellant had been undergoing psychiatric treatment while he was acquiring his arsenal of explosives, and that treatment was also available in a prison setting.  Finding that all psychiatric witnesses had testified that the appellant posed a danger to the public, Nash J.A. concluded that the appellant was potentially very dangerous and that the best that could be predicted was that, with treatment, he might become less so.  For this reason, the safety condition precedent was not satisfied and a conditional sentence was not an available sentence.  The Court of Appeal conveyed this as follows, at p. 294:

The evidence either viva voce or by way of reports all confirm unequivocally that [the appellant] is an extreme danger to the community.  The criminal justice system must balance the treatment of an accused with the protection of the public.  However, the desire to rehabilitate the accused must not be allowed to distort the sentencing process.

(b)  O’Leary J.A. (Cairns and Nash JJ.A concurring), on the substituted

sentence

62                               In determining an appropriate sentence, O’Leary J.A. noted the following aggravating factors:  the quantity, variety and potential destructive capacity of the explosives; the appellant’s apparent purpose for having the explosives; the evidence that the appellant had progressed to an “operational stage”; the danger of the material he possessed; his accumulation of explosive materials over a long period of time, during which he was subject to a firearms prohibition and undergoing psychiatric treatment; and his dangerousness, as testified to by expert witnesses.

63                               O’Leary J.A. then considered the following mitigating factors:  a timely guilty plea; cooperation with authorities; willingness to undergo treatment; willingness to abide by a probation order and the time he had already spent in custody.  He held that a three-year term of incarceration would be appropriate, but that this should be reduced because of the time that the appellant had already spent in the locked unit.  He accordingly imposed a sentence of two years less a day and recommended Fort Saskatchewan Provincial Correctional Institute so that the appellant could access treatment opportunities and facilities with which he was already familiar.  In addition, he imposed a three-year term of probation subject to the same terms enunciated by Chrumka Prov. Ct. J., adding that the appellant must reside in a place specified by Dr. Tweddle and that he must voluntarily consent to a search of his person, vehicle, residence or place of occupation on reasonable suspicion by police that he has in his possession any firearms, explosives or ammunition.

V.  Issues

64                               The following are the central issues to be determined for the disposition of this appeal:

A.   Did the trial judge err in finding that the precondition was met that the appellant serving his sentence in the community “would not endanger the safety of the community” as it appears at s. 742.1  of the Criminal Code ?

B.    Does the conditional sentencing regime contemplate serving a sentence in a locked psychiatric unit of a hospital as a condition of the sentence?

VI.  Analysis

A.  Would the Appellant Serving His Sentence in the Community Endanger the Safety of

      the Community?

1.  Preconditions for the Imposition of a Conditional Sentence

65                               Subsequent to the decision of the Alberta Court of Appeal in the case at bar, this Court released its reasons in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5.  Neither Chrumka Prov. Ct. J. nor the Court of Appeal had the benefit of Proulx when they considered the new conditional sentencing scheme.  I note at the outset of these reasons that, notwithstanding the parties’ submissions, I prefer to decide this case not on a so-called narrow or broad definition of the term “community”, but rather on the principles laid down by this Court in Proulx as well as on the philosophy behind the enactment of the conditional sentencing scheme.

66                               Section 742.1 of the Code lists the following four criteria to be considered before imposing a conditional sentence (see Proulx, at para. 46):

(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(2) the court must impose a term of imprisonment of less than two years;

(3) the safety of the community would not be endangered by the offender serving the sentence in the community; and

(4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718  to 718.2 .

67                               At para. 47 of Proulx, the first three of the above criteria are described as prerequisites to whether or not a conditional sentence is even possible in the circumstances.  The central point of contention between the appellant and the respondent relates to the third criterion of safety to the community, which is a sine qua non to the assessment of whether a conditional sentence would be a fit and proper sanction in the circumstances.  I now turn to the appropriate test in determining whether this condition has been met.

2.  Test Applicable to Evaluating Danger to the Safety of the Community

68                               While certain offenders who would normally have been sentenced to prison may now serve their sentences in the community, it must be emphasized that the conditional sentence is available only to that “subclass of non-dangerous offenders” who would have been sentenced to a term of incarceration of less than two years for offences with no minimum term of imprisonment (Proulx, at paras. 12, 30 and 87).

69                               In assessing whether the appellant is a danger to the community, the Court must consider the following two factors outlined in Proulx, at para. 69:  (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence.  I will examine these factors in turn, ultimately concluding that this condition precedent, entitling the appellant to a conditional sentence, has not been satisfied.

(a)  Risk of Re-offending

70                               When considering whether there is a risk of re-offence, one must take into consideration, inter alia, the nature of the offence, the relevant circumstances surrounding the offence, the profile of the accused, whether the sentence will work, the offender’s conduct following the commission of the offence, whether the offender has previously complied with court orders, whether the offender has a criminal record, and the danger the accused represents for the community (R. v. Brady (1998), 121 C.C.C. (3d) 504 (Alta. C.A.), at paras. 117-27; Proulx, at para. 70; R. v. Maheu (1997), 116 C.C.C. (3d) 361 (Que. C.A.), at p. 374).

71                               In addition, Lamer C.J. states in Proulx that the conditions attached to the sentence should be considered when weighing the risk of re-offence.  He conveys this as follows, at para. 72:

The risk of re‑offence should also be assessed in light of the conditions attached to the sentence.  Where an offender might pose some risk of endangering the safety of the community, it is possible that this risk be reduced to a minimal one by the imposition of appropriate conditions to the sentence. . . .  For example, a judge may wish to impose a conditional sentence with a treatment order on an offender with a drug addiction, notwithstanding the fact that the offender has a lengthy criminal record linked to this addiction, provided the judge is confident that there is a good chance of rehabilitation and that the level of supervision will be sufficient to ensure that the offender complies with the sentence.

72                               The above passage suggests that the risk of re-offence should be determined in light of the conditions imposed.  In my opinion, taking this approach to the risk determination beyond what was intended would result in a circular process whereby a sentencing judge would endeavour to come up with a condition incompatible with the conditional sentencing regime prior to determining whether the criterion that the appellant not endanger the safety of the community has been satisfied.  It is my belief that this passage was not meant to allow the sentencing judge to craft any possible condition under which there would no longer be a danger to the community.  Since I will be dealing with this in the next section of these reasons, where I hold that sentencing an offender to a locked psychiatric ward is not a condition envisaged under the conditional sentencing scheme, I will accept for the purposes of this part of the analysis that all of the conditions imposed by Chrumka Prov. Ct. J. were to be considered when assessing the risk of re-offence.  Nevertheless, for the reasons that follow, I conclude that, even accepting the conditions he imposed, Chrumka Prov. Ct. J. erred in his determination that the appellant no longer posed a danger to the community.

73                               The intervener Alberta Mental Health Board (“AMHB”) asserts that assessing the risk posed by mentally ill offenders, without reference to their mental health status or the availability of supports, has the potential to seriously disadvantage this group on the basis of perceived risk, stigma and stereotype.  I would agree with the intervener that the offender’s mental state must be considered as well as available supervision and programs in the community.  However, contrary to the AMHB, I do not think that the danger posed by Mr. Knoblauch was overestimated in this case on the basis of perceived risk or stigma or without considering available support services.  On the contrary, the medical evidence in this case is undisputed that the appellant poses a very real danger to the public.

74                               In assessing the risk of re-offence in this case, the appellant’s history of weapons offences must be considered.  The record demonstrates that the appellant was already subject to a prohibition from possessing firearms, ammunition and explosives at the time that he committed the offences in question.  Nevertheless, by the time the appellant was apprehended, he had amassed a large arsenal of highly volatile explosives capable of injuring many people and leading to substantial property damage.  The medical evidence also establishes that the appellant has been engaged in dangerous activity in the past even while undergoing treatment.  The appellant had previously been an in-patient at the Alberta Hospital, although he was never in the psychiatric unit for a lengthy period of time.

75                               Dr. Tweddle testified that, even with treatment, the appellant would always remain potentially dangerous due to his fragile personality.  Dr. Singh described the appellant as:

. . . an angry, blaming, vengeful person, one who dwells on the felt transgressions of others and one who lacks the usual social restraints.  This unfortunate combination in conjunction with a well established interest in and experience with explosives does not bode well for future public safety.

76                               Unfortunately, whether the appellant is sentenced to a prison term or treated at a psychiatric hospital, he will likely remain a danger even when his sentence is complete.  His condition previously deteriorated while he was undergoing treatment and his dangerous behaviour escalated.  Based on the psychiatric expert reports and testimonies, the most that can be said about the appellant is that with treatment he may pose “less of a danger”.

77                               While it is important to consider that, during the term of his conditional sentence, the appellant would be subject to supervision, in my opinion, despite such supervision and the availability of programs, the evidence points to a risk of re-offending.  Moreover, when considering all of the conditions imposed by Chrumka Prov. Ct. J., it must be emphasized that the sentence order did not ensure that the appellant remained under maximum security at the Alberta Hospital throughout the entire period of his sentence.  Rather, the sentence imposed contemplated release into the general community.  Indeed, the appellant was to reside in a locked psychiatric treatment unit of the Alberta Hospital until a consensus was reached among psychiatrists that the appellant could be transferred out of the locked unit and into other treatment facilities.  Implicit in Chrumka Prov. Ct. J.’s sentence was therefore a delegation to the appellant’s physicians to decide when and under what conditions the appellant would be released from the locked psychiatric ward.  There was no evidence regarding the level of security at those other facilities.  In fact, the appellant tendered no evidence regarding the security of these other treatment facilities, the extent to which they may afford contact with members of the public, or how long a period the appellant would remain in the locked unit prior to being released to these other facilities.  There is thus no way of ensuring that there would not be a risk of re-offence once the appellant was released.  Dr. Cadsky testified that, although this had not been the appellant’s style in the past, if the appellant were in the community, it is possible that he might re-offend before Dr. Cadsky would have an opportunity to intervene.  Thus, I am unable to accept the appellant and the AMHB’s submissions that the appellant has been disadvantaged solely on the basis of perceived risk, stigma or stereotype.  The evidence in this case demonstrates, to the contrary, that the risk is not “perceived” at all but very real.

78                               Even if I were to accept, taking into account the condition that the appellant was required to reside in a locked and secure psychiatric ward, that the first prong of the “dangerousness” test has been passed in that the risk of re-offence is only minimal, the gravity of the potential harm that would ensue if the appellant were to re-offend could preclude a conditional sentence in and of itself.  In certain cases, even a minimal risk of re-offending will be offset by the gravity of the damage that might ensue in the event of a re-offence (Proulx, at para. 69).  At this second stage in evaluating dangerousness, I see another insurmountable impediment to holding that the safety of the community would not be endangered by allowing the appellant to serve a conditional sentence.

(b)  The Gravity of the Damage in the Event of Re-offence

79                               The two stages for determining dangerousness are analytically separated.  Once the judge finds that the risk of recidivism is minimal, the second factor to consider is the gravity of the potential damage in the event of re-offence (Proulx, at para. 74).  Where the offender represents an extreme danger to the physical or psychological safety of persons, a conditional sentence is not appropriate.  As professed by Lamer C.J. in Proulx, at para. 74, “[p]articularly in the case of violent offenders, a small risk of very harmful future crime may well warrant a conclusion that the prerequisite [that the safety of the community would not be endangered] is not met”.  Thus, even with a minimal risk of re-offence, potentially very serious consequences may bar the imposition of a conditional sentence.  In my opinion, this is one of those cases.

80                               In determining which offenders should benefit from the conditional sentence regime, one must stress that the criterion that serving the sentence in the community would not endanger the safety of the community is a condition precedent to the imposition of a conditional sentence rather than a continuing and overarching consideration in the process of determining whether a conditional sentence is appropriate (Proulx, at para. 65).  Consequently, no matter how effective a conditional sentence might be over time and no matter how important the goals of rehabilitation and reintegration, the possibility that an offender might explode a bomb with very grave consequences might bar any possibility of such a sentence.  This is consistent with Parliament’s intention that the conditional sentence be used as an alternative for less serious and non-dangerous offenders.

81                               Keeping in mind the above principles and that the conditional sentence is reserved solely for a “subclass of non-dangerous offenders”, the record demonstrates that the potential harm that could be inflicted should the appellant re-offend would be devastating.  The appellant had in his vehicle and in his apartment an arsenal capable of causing mass destruction to property, death and serious injury to persons in the area indiscriminately.  The device found in the appellant’s vehicle was described as presenting greater safety concerns for the Edmonton bomb unit than the unit had previously experienced.  When one considers that the materials in the appellant’s car were equivalent to 13 percent of the materials used in the Oklahoma City bombing, it is hard to conceive of the damage in the event of re-offence as anything but grave.

82                               Thus, even if the risk of re-offence was minimal, the gravity of the damage in the event of a re-offence is extreme.  The appellant could not refute the fact that there is at least a small risk of very harmful future crime in this case.  For this reason, I conclude that, even taking into account the conditions of the sentence, the appellant continues to represent a danger to the safety of the community.

3.  Definition of “Community”

83                               There is one final issue which should be addressed before proceeding to the broader issue of whether a conditional sentence may be served in a locked psychiatric institution.  There has been much discussion in this case over the proper construction of the word “community” as it relates to establishing the prerequisite that a conditional sentence not endanger the “safety of the community” in s. 742.1 of the Code.  The appellant argues that the term “community” in s. 742.1  refers to the location in which a sentence is served and is thus limited in this case to the hospital setting.  By contrast, the respondent submits that the “community” must be defined broadly as the public at large.

84                               Section 742.1 provides no definition for the term “community”.  While the Court’s recent decision in Proulx undertakes a comprehensive examination of the conditional sentencing scheme and provides guidance as to its interpretation, the Court’s reasons in Proulx do not explicitly signal whether the “community” in s. 742.1  includes a hospital or other psychiatric institution.  As I stated above, I prefer not to reach my decision in this case on rules of statutory interpretation and on whether one should adopt a so-called “narrow” or “broad” definition of the term community.  Nevertheless, there are several comments I wish to make in this regard.

85                               I believe that both the parties and Chrumka Prov. Ct. J. confuse  the uses of the word “community” in s.742.1  by attributing different meanings to the same term.  Section 742.1  speaks of the offender “serving the sentence in the community”, of the court being satisfied that he would not “endanger the safety of the community”, and of the court imposing conditions “for the purpose of supervising the offender’s behaviour in the community”.  The term is therefore used in relation to establishing “safety of the community”, as well as noting that a conditional sentence is a sentence “served in the community”.  Although this word is used in different contexts both within s.742.1  as well as within other sections of the Code, I do not believe it is necessary or wise to attribute different meanings to this same term.

86                               In my opinion, neither the appellant nor the respondent are entirely correct in their submissions on this issue of the proper construction of the term “community”.  First, I stress that I accept the appellant’s assertion that persons in psychiatric hospitals continue to be members of the “community”.  However, I am unable to accept the appellant’s arguments that the term “community” should be limited to that segment of the community when assessing dangerousness to the community.  On the contrary, “community” in s. 742.1  must be interpreted as also including the general public.  A purposeful and contextual interpretation of the word “community” in the safety context of s. 742.1  reveals Parliament’s intent that the term should be interpreted broadly.  Moreover, an examination of other Criminal Code  provisions relating to safety supports the view that safety concerns are placed in the broadest, most public context.  For example, additional conditions of a probation order, at s. 732.1(3) (h), include “such other reasonable conditions as the court considers desirable . . . for protecting society and for facilitating the offender’s successful reintegration into the community”.  In this context, it would be absurd to limit the term “community” to the community in which the sentence is served.  If community referred to the context in which the sentence was served, there would be no point or need for reintegration.

87                               We must also consider together the English and French versions of the legislation.  In French, the legislature used the term “collectivité”, which corresponds in Le Nouveau Petit Robert to “communauté, groupe, société”.  By definition, “collectivité” does not refer to a narrowly defined community, such as an institution.  It would be illogical to refer to “la collectivité de l’hôpital”, for example.  Principles of statutory interpretation dictate that, where the versions of bilingual legislation do not necessarily have the same meaning, they should be reconciled and the meaning that is shared by both should be adopted (Driedger on the Construction of Statutes (3rd ed. 1994), by R. Sullivan, at p. 220).  In this case, only a definition of “community” that is not restricted to the psychiatric unit would be consistent with both the French and English versions of the legislation.

88                               One can also look to Part XX.1 of the Code and to the s. 753(1) dangerous offender provision which are focussed primarily on the goal of protecting the public.  In effect, a review of the statutory scheme on sentencing points to a broad interpretation of “community”, equating it with the public at large.  Section 718 of the Code makes this abundantly clear.  The principles of sentencing include, inter alia:  providing reparations for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.  In this context, it would be nonsensical to interpret “community” as the community in which the conditional sentence is to be served.  That particular community would not necessarily have been harmed by the offender’s acts.  I recognize the unfortunate reality that persons in need of mental health support are often the subject of stereotypes and biassed perceptions.  I disagree, however, that the best means of dealing with these attitudes is to limit the scope of their “community”.  If anything, limiting the scope of the community of mentally disordered persons serves to further isolate and disempower these individuals.

89                               Chrumka Prov. Ct. J. seems to have confused the proper approach for determining whether the safety of the community would be endangered if the appellant was to serve his sentence in the community.  This is evident from the following exchange where he questioned Crown counsel about the safety of the “public” within the penitentiary if the appellant was sentenced to incarceration:

The Court:  What of the public safety within penitentiaries, if he’s sent to the penitentiary?

Ms. Hughson:  While he’s within the penitentiary?

The Court:  Members of the penitentiary are public.

Ms. Hughson:  Oh.

The Court:  They are part of the public, they have to be protected.  What is there — how is their safety going to be resolved the same as yours and mine if he’s released into our community rather than to the prison penitentiary community?

The above passage demonstrates that the sentencing judge considered those in the prison setting to be part of the public.  In so doing, he acknowledged that “community” also includes the public.  However, the whole conditional sentencing regime posits community versus prisons and a sentencing judge should not be considering the safety of those in prison when determining whether the conditions precedent for the imposition of a conditional sentence have been met.  As I stated earlier, the question to be addressed in this case is not whether the appellant and the public would be better off if the appellant’s sentence is served in a hospital, but whether the conditions for the imposition of a conditional sentence have been satisfied in the circumstances of this case.

90                               Thus, while I would not deny that the hospital is also a part of our community, I cannot conclude that one can look solely to the community where the offender is to reside when determining whether the condition precedent is satisfied.  In my view, the community with which a sentencing judge must be concerned consists of all persons who could be at risk of being harmed by the offender.  In light of the Proulx decision, I conclude that if there is a danger to any person by the offender serving the sentence in the community, whether that person be a resident of the psychiatric hospital or in the public at large, then a conditional sentence should not be imposed.

91                               Moreover, as explained above, the facts in the case at bar do not support a definition of “community” that is limited to the psychiatric unit of the Alberta Hospital.  In fact, the order imposed by Chrumka Prov. Ct. J. contemplated the appellant’s release into the general community upon a consensus of his psychiatrists to transfer him out of the locked unit.  There was thus a delegation to the appellant’s physicians to decide when and under what conditions the appellant would be released into the community “at large”.  At para. 33 of his factum, the appellant admits that the conditions of his sentence allow for “controlled contact” with the general public.  Thus, the conditions imposed by Chrumka Prov. Ct. J. did anticipate that the offender would, at some undetermined period, have broad and independent contact with the community at large.  Therefore, factually, the “community” that the sentencing judge would be responsible for having in mind in his safety assessment would include both those persons residing in the psychiatric ward and those of the general public.

92                               Once we accept that the appellant may be released into the general public at any time upon consensus of his physicians, the risk of re-offence coupled with the gravity of the damage in the event of re-offence leads to the inevitable conclusion that the appellant is not one of that subclass of offenders who should benefit from a conditional sentence.  It is clear that there is at least a risk of serious danger to the community that could result from the appellant serving a conditional sentence in this case.

4.  Conclusion on the Condition that the Safety of the Community Not Be

      Endangered

93                               We must keep in mind that it would be difficult, if not impossible, to modify the analysis of the first three preconditions for a conditional sentence at s. 742.1  on the basis of sentencing principles such as rehabilitation and reintegration which have yet to come into full play at this stage.  As Lamer C.J. stated in Proulx, at para. 65, “[i]t is only once the judge is satisfied that the safety of the community would not be endangered . . . that he or she can examine whether a conditional sentence ‘would be consistent with the fundamental purpose and principles of sentencing set out in sections 718  to 718.2 ’”.  Thus, notwithstanding the fact that several experts have testified that the appellant’s “dangerousness” has a greater likelihood of being reduced following treatment, this does not satisfy the statutory precondition that the community would not be endangered.  Even taking into account the conditions of the sentence, the safety condition has not been met.

94                               While I have concluded that the appellant represents a danger to the community and was thus not entitled to a conditional sentence, I nevertheless turn to what I consider the broader and more critical issue in this appeal, namely, whether confining an offender to a locked psychiatric institution is in conformity with the conditional sentence scheme in the first place.  I note that since the Alberta Court of Appeal concluded that the appellant never passed the condition that he would not endanger the safety of the community, it did not go on to consider this broader question.

B.  Does the Conditional Sentencing Regime Contemplate Serving a Sentence in a

      Locked Psychiatric Unit as a Condition of the Sentence?

1.  Optional Conditions of a Conditional Sentence Order

95                               In addition to the compulsory conditions a sentencing judge is required to impose under a conditional sentence order, pursuant to s. 742.3(2) of the Code the sentencing judge may impose optional conditions.  Of particular relevance to this appeal are ss. 742.3(2)(e) and (f), which provide as follows:

742.3  . . .

(2)  The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:

                                                                   . . .

(e)  attend a treatment program approved by the province; and

(f)  comply with such other reasonable conditions as the court considers desirable . . . for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

96                               Even if one were to conclude that the appellant does not represent a danger to the community, one question which must be addressed is whether locking up an offender in a psychiatric unit of a hospital constitutes a reasonable condition under the above provisions.  The respondent contends that a conditional sentence which confines an offender to a psychiatric institution is distinct from a treatment order envisioned at s. 742.3(2)(e).  The respondent also submits that s. 742.3(2)(f) cannot be used to confine an individual to a psychiatric hospital.  I agree with the respondent.  In addressing these arguments, it is important to consider the legislative scheme as a whole as well as its legislative history.  As professed by this Court in Proulx, at para. 13, it is important to situate the conditional sentence in the broader context of the comprehensive sentencing reforms enacted in the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C-41”).  In my view, it is when attempting to do so that it becomes clear that it was not Parliament’s intention that the conditional sentence be used as it has been by Chrumka Prov. Ct. J. in this case.

2.  Distinction Between Institutional and Non-Institutional Sentences

97                               Writing for the Court in Proulx, Lamer C.J. highlights a critical distinction between a prison sentence and a conditional sentence, namely, that a conditional sentence is not one where an offender is confined to an institution (at para. 40):

Although a conditional sentence is by statutory definition a sentence of imprisonment, this Court, in R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 21, recognized that there “is a very significant difference between being behind bars and functioning within society while on conditional release”. . . .  These comments are equally applicable to the conditional sentence.  Indeed, offenders serving a conditional sentence in the community are only partially deprived of their freedom.  Even if their liberty is restricted by the conditions attached to their sentence, they are not confined to an institution and they can continue to attend to their normal employment or educational endeavours.  They are not deprived of their private life to the same extent.  Nor are they subject to a regimented schedule or an institutional diet.  [Emphasis added.]

While the conditional sentence may incorporate some restrictions on free movement with non-custodial measures (Proulx, at para. 22), clearly, the above passage indicates that offenders serving a conditional sentence are not confined to an institution but are meant to continue working, attending school, and participating in treatment programs.

98                               In Proulx, the Court suggests that treatment orders might be appropriate even where the offender has a criminal record, provided the judge is confident that there is a good possibility of rehabilitation and a sufficient level of supervision (at para. 72).  Later, at para. 110, the Court states that there are any number of conditions that a sentencing judge may impose in order to rehabilitate an offender and the Court cites as examples mandatory treatment orders such as psychological counselling and alcohol and drug rehabilitation.  However, what the sentencing judge has imposed in the case at bar is not a “treatment program” which is permitted under s. 742.3(2)(e) but a type of custodial order in a locked psychiatric institution.  I recognize that the psychiatric unit of a hospital is obviously not the same thing as a prison.  Nevertheless, a sentence in such an institution shares many of the attributes of a custodial sentence.  Like prison, an offender who is detained in a hospital would be segregated from other members of the community in a significant manner.  She would also be subject to severe restrictions on her liberty and considerable intrusions on her privacy.  Restrictive conditions such as house arrest and curfews may be the norm under conditional sentences (Proulx, at para. 36).  However, there remains a distinction between custodial and non-custodial sentences; see Proulx, at para. 43 and specially para. 56, where Lamer C.J. speaks of non-custodial disposition in the context of the conditional sentencing regime.  Even under house arrest, being confined to one’s home allows greater freedom than confinement in an institution.  One can hardly compare sleeping in one’s own bed, amidst one’s family, to confinement in a locked psychiatric unit.  Clearly, confining an offender to this setting prevents the offender from attending to his or her normal employment or educational endeavours.

99                               At para. 43 of Proulx, Lamer C.J. suggests that a parolee may even be subject to stricter conditions than those under a conditional sentence since the parolee can be assigned to a community-based residential facility pursuant to the Corrections and Conditional Release Act  and Regulations.  In making this statement, the Court clearly did not consider locking an offender up in a psychiatric ward for an indefinite period of time to be a reasonable condition of a conditional sentence since one can hardly consider such a sentence less severe than assignment to a community-based residential facility.  Moreover, pursuant to s. 742.3(2) (d), a sentencing judge is restricted to ordering a maximum number of 240 hours of community service under a conditional sentence.  I find it very difficult to comprehend that Parliament would permit a sentencing judge to order complete confinement in a locked psychiatric institution for two years or more but that a sentencing judge is prevented from ordering 300 hours of community service.

100                           In his discussion on the distinctions between incarceration and conditional sentences, Lamer C.J. speaks of there being no way of reducing a conditional sentence through parole since the offender is never actually incarcerated under a conditional sentence and there is therefore no need for him or her to be reintegrated into society (Proulx, at para. 43).  Thus, separating an offender from society is not a relevant sentencing goal with respect to conditional sentences since the prerequisite to a conditional sentence is that the offender not pose a danger to the community (Proulx, at para. 108).  Thus, Proulx makes it evident that conditional sentences are meant as an alternative to incarceration and not as a sentence to any type of locked institution subsequent to which the offender would have to be reintegrated into the community.  Sentencing an offender to a locked psychiatric facility for potentially a two-year period or longer contravenes these principles.  Clearly, the sentence imposed by Chrumka Prov. Ct. J. was not consistent with Proulx in this regard.  Indeed, the record in this case is replete with references to a slow process of reintegration into the community subsequent to the appellant being released from the psychiatric ward which could occur at any time upon consensus of the appellant’s physicians.

101                           This view of the philosophy behind the conditional sentencing regime is buttressed by the recent appellate decisions which hold that “blended” sentences, where the first part of the sentence is served in custody and the latter part is a conditional sentence under supervision in the community, are illegal and contrary to the underlying purpose of the conditional sentencing regime; see, for example, R. v. Fisher (2000), 47 O.R. (3d) 397 (C.A.); R. v. Hirtle (1999), 136 C.C.C. (3d) 419 (N.S.C.A.); R. v. Wey (1999), 142 C.C.C. (3d) 556 (Alta. C.A.); R. v. Monkman (1998), 132 C.C.C. (3d) 89 (Man. C.A.); R. v. Maynard, [1999] M.J. No. 8 (QL) (C.A.); and R. v. Kopf (1997), 6 C.R. (5th) 305 (Que. C.A.).  Notwithstanding that sentencing judges in these cases sought to be creative in tailoring what they considered appropriate sentences in the circumstances, the conditional sentence is not meant to be served in custody which, in my opinion, includes institutional settings such as being locked in a psychiatric ward.

102                           A review of the legislative history of the conditional sentencing provisions also suggests that Parliament intended that conditional sentences be non-institutional in nature and that supervision in the community was not meant to be equivalent to confinement in an institution.  In introducing the second reading of the Bill amending the Criminal Code  to include the new Part XXIII, then Minister of Justice Allan Rock stated (House of Commons Debates, vol. 133, 1st Sess., 35th Parl., September 20, 1994, at p. 5873):

Where a court imposes a sentence of imprisonment of less than two years and where the court is satisfied that serving the sentence in the community would not endanger the safety of society as a whole, the court may order that the offender serve the sentence in the community rather than in an institution.

                                                                   . . .

It seems to me that such an approach would promote the protection of the public by seeking to separate the most serious offenders from the community while providing that less serious offenders can remain among other members of society. . . .  [Emphasis added.]

103                           Included within Bill C-41 were ss. 747 to 747.8, dealing with hospital orders.  The Law Reform Commission had recommended that a system of hospital orders be instituted to permit judges to order treatment in hospitals.  These provisions were drafted as a result of lengthy study, consultation and consensus.  Sections 747 to 747.8 empower a court to order an offender who suffers from a mental disorder to serve up to 60 days of his prison sentence in a hospital or other treatment facility.  The hospital order provisions were enacted at the same time as the conditional sentencing scheme, but have not yet come into force.  Similar provisions were included in the 1992 amendments to the Criminal Code ; they too were never proclaimed into force.

104                           These hospital order provisions included extensive guidelines and were to be available only in very limited circumstances.  For example, detainment in a treatment facility was limited to the initial part of a sentence of imprisonment where the offender was “in an acute phase” of a mental disorder, for a period not exceeding 60 days, where the court finds that immediate treatment is “urgently required” to prevent further deterioration of the offender’s condition, or to prevent him or her from causing serious physical harm to another person.  In addition, no hospital order was to be made unless the offender and the person in charge of the treatment facility consented to the order.  The offender could also not be a dangerous offender pursuant to s. 753.  Initially, there was to be no 60-day limit to the hospital orders.  However,

within the federal government concern was expressed that to start with a full-blown scheme might be too ambitious, not only from the standpoint of cost but also the availability of appropriate treatment facilities.  The proposal was therefore pared down to one that would allow the court to order treatment for a period not exceeding 60 days where, at the time of sentencing, “the offender is suffering from a serious mental disorder that is not likely to be substantially improved unless the offender receives treatment in a hospital or other place, other than a prison . . .”  [Emphasis added.]

(E. A. Tollefson and B. Starkman, Mental Disorder in Criminal Proceedings (1993), at pp. 143-44.)

105                           While I recognize that these hospital order provisions were limited in scope, this examination of what was to be included under the hospital order provisions supports a more cautious approach to ordering psychiatric treatment under the conditional sentencing regime.  Where the legislature intended that a sentencing judge be permitted to confine an offender to a treatment facility, it provided extensive guidelines, most notably with respect to consent and duration of the order.  If s. 742.3(2)(f) could be used to sentence a person to a psychiatric hospital, there would be serious problems in the practical application and administration of such conditional sentence orders.  As it stands, there are no guidelines as to how such sentences might be implemented.  Many questions are left unanswered such as the evidence required upon sentencing, whether the court may delegate decisions regarding the gradual release of the offender to medical professionals, and whether the consent of the offender and the institution are required.  Thus, had s. 742.1  and the conditional sentence been intended as a mechanism allowing for the detainment of offenders in treatment facilities, especially for extended periods of time, one can only assume that similar guidelines would have been set as well, especially since the Minister of Justice described Bill C-41 as providing the courts with [translation] “clear guidelines”; see House of Commons Debates, supra, at p. 5871, and Brady, supra, at para. 9.  It is also difficult to understand why Parliament would want to limit the availability of hospital detentions to persons convicted to terms of imprisonment of less than two years if such detentions were meant to rehabilitate all offenders and to reduce recidivism.

106                           Section 718.2(e) of the Code directs a court to consider all available sanctions other than imprisonment, “with particular attention to the circumstances of aboriginal offenders”.  Parliament has thus chosen to single out aboriginal offenders for distinct sentencing treatment in order to address the serious problem of over-incarceration of aboriginal offenders in Canada (R. v. Gladue, [1999] 1 S.C.R. 688, at paras. 44 and 50; R. v. Wells, [2000] 1 S.C.R. 207, 2000 SCC 10, at para. 37).  While, unfortunately, the mentally ill, like aboriginals, are sadly over-represented in the prison population, there are no similar provisions in force which address the particular situation of the mentally ill.  A similar conclusion can be reached from the following passage from Gladue, at para. 44:

There is also sentencing jurisprudence which holds, for example, that a court must consider the unique circumstances of offenders who are battered spouses, or who are mentally disabled.  Although the validity of the principles expressed in this latter jurisprudence is unchallenged by the 1996 sentencing reforms, one does not find reference to these principles in Part XXIII.  If Part XXIII were indeed a codification of principles regarding the appropriate method of sentencing different categories of offenders, one would expect to find such references.  The wording of s. 718.2(e), viewed in light of the absence of similar stipulations in the remainder of Part XXIII, reveals that Parliament has chosen to single out aboriginal offenders for particular attention.

107                           If treatment of mentally ill offenders was to be “the” or at least “a” paramount concern under the conditional sentencing scheme, there would, in my opinion, at least have been some mention of this in the Criminal Code .  In my view, where the legislature left open s. 742.3(2) (f) for the court to impose “other reasonable conditions” as it considers desirable, it was not meant to confer a discretion to impose any sentence whatsoever under the guise of a conditional sentence.  Had Parliament intended to permit sentences such as the one imposed by Chrumka Prov. Ct. J. in this case, it would not have left such a void.  It would be illogical if the only portion of Bill C-41 that deals specifically with mentally ill persons has not been proclaimed, yet the proclaimed portions, which do not specifically deal with these individuals, were meant to allow them to be sentenced to a hospital for up to five years (two years plus three years’ probation).  If Parliament had intended that the conditional sentence was to bring about an entirely different approach to the sentencing of mentally ill offenders, it would have been far more specific and far more clear.

3.  Usual Methods of Confining Offenders to Treatment Facilities

108                           The usual methods of confining a person to a hospital in the criminal context are as a condition of parole, or through a ruling that he or she is not criminally responsible on account of mental disorder (“NCR”) under s. 16  and Part XX.1 of the Criminal Code .  I will briefly address each of these methods.

109                           In the case at bar, the appellant has been transferred to the psychiatric unit of the Alberta Hospital as one of his conditions of parole to undergo treatment as an in-patient.  The National Parole Board order dated October 21, 1999, which allowed the appellant to be moved from the Fort Saskatchewan Provincial Correctional Institute to the Alberta Hospital, stated that the appellant’s movements must be “tightly controlled in order to protect the public”.  It is clear from the facts of this case that the Parole Board has explicit legislative authorization to transfer offenders to hospitals as a condition of their parole.  Indeed, the relevant legislation which sets out the responsibilities of the correctional systems normally provides for treating mentally ill offenders in hospitals and other treatment facilities.  For example, in Alberta, s. 9 of the Corrections Act, R.S.A. 1980, c. C-26, and ss. 14-19 of the Correctional Institution Regulations, Alta. Reg. 138/77, provide for the transfer of inmates who require treatment to hospitals pursuant to the Mental Health Act, S.A. 1988, c. M-13.1.  In addition, in Canada, the Corrections and Conditional Release Act, S.C. 1992, c. 20 , allows for federal-provincial agreements for the confinement in hospitals of persons sentenced to penitentiaries as well as transfers to hospitals.  While there is a need for greater cooperation between correctional authorities and mental health authorities, at least there has been some cooperation between them in this case as evidenced by the Parole Board having transferred the appellant to the Alberta Hospital.

110                           I also note that prior to transferring offenders from prisons to treatment facilities, treatment is available to mentally ill offenders within the correctional system itself.  I recognize, however, that such treatment may be inadequate and that the appellant would not have access to the same range of programs there as he would at the Alberta Hospital for example (testimony of Dr. Tweddle).  Nevertheless, it is important to note that O’Leary J.A. recommended Fort Saskatchewan Provincial Correctional Institute in the first place so that the appellant could access treatment opportunities and facilities with which he was already familiar (p. 295).

111                           A second method of confining a person to a hospital in the criminal context is through a s. 16  NCR ruling.  Once an accused is found not criminally responsible on account of his or her mental disorder, he or she comes within the jurisdiction of a Review Board which is granted the power under s. 672.54 to make one of the following dispositions:  an absolute discharge (where the accused would not be a significant threat to the safety of the public), a conditional discharge, or a custodial order that the accused be detained in a hospital.  The goals of this alternative system are to protect the public and to treat mentally disabled offenders fairly and appropriately.  The majority of the Court affirmed in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 41, that a disposition under s. 672.54 is not punitive in nature but is intended to provide the accused with treatment opportunities.  The idea is that both the accused and society are better served by stabilizing the accused’s mental condition, thereby reducing the threat to public safety (Winko, at para. 39).  The restrictions on the accused’s liberty are legitimate if the accused poses a significant danger to the safety of the community.  In fact, the unit of the Alberta Hospital, where the appellant was sentenced to reside, is a maximum security facility which also houses patients who have been found not criminally responsible by reason of mental disorder.

112                           Unlike a person held not criminally responsible on account of mental disorder, a person with a mental disability who is being sentenced is criminally responsible for his or her actions.  Indeed, the record in the case at bar demonstrates that, although the appellant suffers from a mental disorder, he appreciated the nature and quality of his acts and, for that reason, no s. 16  request was made.  In fact, the appellant was described by Dr. Tweddle as “not Section 16  material”.  The conditional sentencing provisions form part of a package of amendments to Part XXIII of the Criminal Code .  These amendments included for the first time a statement of the purpose and objectives of sentencing.  One fundamental principle of sentencing is the principle of “proportionality” which dictates that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.  This principle was codified at s. 718.1 of the Code.  The appellant was not found not criminally responsible by reason of mental disorder and, while conditional sentences were designed to permit the accused to avoid imprisonment, they were not designed to avoid punishment.  The appellant possessed a culpable state of mind.  Sentencing should reflect this.

VII.  Conclusion and Disposition

113                           According to the approach the appellant proposes, once it is determined that an offender is extremely dangerous, if conditions could be crafted which include the possibility of locking up an offender in an institution or in his or her house for 24 hours a day, a conditional sentence would then become appropriate since there would no longer be a danger to the community.  I am unable to agree that those were the types of restrictions that Parliament envisioned could be imposed as a conditional sentence.  When a sentencing judge is at the initial stage of determining whether a conditional sentence would be appropriate, he or she should not engage in a circular analysis by deciding first that the offender is dangerous but then searching for conditions which could be crafted to alleviate the danger such that a conditional sentence may become appropriate.  One cannot take the end result of minimizing the danger and feed it back into whether a conditional sentence is appropriate in the first place.

114                           While it has been suggested that this case should be restricted to its particular facts, we must keep in mind that the application of the dangerousness test applies to all offenders and would not be limited to the mentally ill.  Thus, if the appellant’s arguments were to succeed, any offender, dangerous or not, could serve his or her sentence in a locked institution or under house arrest with an armed guard for two years and, under such restrictions, he or she would not endanger the safety of the community.  However, the conditional sentence is designed as an alternative to incarceration which is available only for “less serious and non-dangerous offenders” (Proulx, at para. 21).  In cases where the experts have decided that the appellant is extremely dangerous, then surely the appellant represents a danger to the community.  If a sentencing judge must resort to locking up an offender in a psychiatric institution in order to satisfy the “dangerousness” precondition, then this offender is not suited to the conditional sentencing regime.  In such cases, Parliament has said that the conditional sentence is not available.

115                           Thus, while I believe that Chrumka Prov. Ct. J. had the best intentions when he sought to craft an appropriate sentence in a difficult case, I have concluded that the Court of Appeal was correct in overturning the conditional sentence he imposed, both on the basis that the appellant continues to represent a danger to the safety of the community and because the type of sentence he imposed was not contemplated under the conditional sentencing scheme.  Notwithstanding this result, I find it very unfortunate that there are inadequate resources to treat the mentally ill in most of Canada’s correctional facilities and that there is a void in the Criminal Code  in its lack of provision of treatment for mentally disabled offenders.  It is particularly unfortunate that medical order provisions have not been proclaimed and that the treatment needs of mentally ill offenders, and ultimately the safety of the public when the offenders are released from prison, have been sacrificed because of intergovernmental financial disputes.  The evidence in this case indicates that there is already an insufficient number of beds for the number of people who could benefit from care at the Alberta Hospital.

116                           There is no doubt that an appropriate scheme to provide for the treatment of mentally ill offenders which takes into account the reality of offenders who suffer from mental disorders should be in force.  Moreover, recognizing the importance of treating mentally ill offenders also begs the question of why such treatment should be limited to those eligible for a conditional sentence.  If our emphasis is on treating mentally ill offenders, such orders should not be restricted to offenders who receive a sentence of less than two years with no minimum term of imprisonment.  This would lead to a situation where those mentally ill offenders who are sentenced to longer terms of imprisonment, but who would also be “better off” with medical treatment than a prison sentence, would not be entitled.  Sadly, I believe that many offenders currently serving prison sentences would meet the description of the appellant as possessing “deeply ingrained personality difficulties” (testimony of Dr. Tweddle).

117                           Persons with mental disabilities should never be sentenced on the basis of bias, prejudice or stereotypes.  All available information should be before the sentencing judge regarding both the offender and available programs and facilities.  Where the conditions precedent have been satisfied, mentally ill offenders should never be excluded from the benefits of the conditional sentencing regime.  However, like any other offender who does not meet the prerequisites for a conditional sentence, the appellant has not done so in this case.  While I do consider this an unfortunate situation, as they stand, the sentencing provisions cannot legitimately be construed to allow for a sentence of the type imposed by Chrumka Prov. Ct. J.  While there is a pressing need to address the sentencing regime and its application to psychiatrically disordered offenders, the legislation should not be judicially rewritten in order to do so.

118                           I would accordingly dismiss the appeal.

The following are the reasons delivered by

119                           Iacobucci J. (dissenting) — I have read the lucid reasons of Bastarache J. and Arbour J.  I find myself in agreement with the view of Arbour J. that, generally speaking, a conditional sentencing order can be made under the Criminal Code, R.S.C., 1985, c. C-46 , requiring an offender to undergo treatment in a closed psychiatric facility, provided that such an order is reasonable in the circumstances, and consistent with the purpose and principles of sentencing.  In such a situation, I am of the view that the discretion afforded to sentencing judges under s. 742.3(2)(f) of the Code is wide enough to include sentences that require psychiatric care in a hospital setting.  On these points, I agree with Arbour J.

120                           Having said this, I agree with Bastarache J.’s finding that a conditional sentence was not an appropriate order in the case before us.  More specifically, I share his view that the appellant did not satisfy the test for dangerousness set out in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, which held that, before a conditional sentence may be ordered, the risk of the offender’s re-offending and the gravity of the damage that such re-offence could entail must be considered.  I agree with Bastarache J. that these conditions were not met in this case.

121                           Accordingly, I would dispose of the appeal as proposed by Bastarache J.

Appeal allowed, L’Heureux‑Dubé, Gonthier, Iacobucci and Bastarache JJ. dissenting.

Solicitors for the appellant:  Royal, McCrum, Duckett & Glancy, Edmonton.

Solicitor for the respondent:  The Attorney General for Alberta, Edmonton.

Solicitors for the intervener:  Mary A. Marshall, Edmonton; Miller Thomson, Edmonton.