Getting Away With Murder

[7] An accused who is found NCR cannot be punished for his or her criminal act. Any post-verdict limitation on the liberty of the person found NCR must be justified on the basis that he or she poses an ongoing danger to the community: R. v. Owen, [2003] 1 S.C.R. 779, at para. 25. That constitutionally mandated precondition to restriction on liberty finds its statutory expression in s. 672.54(a). That section provides that if the Review Board concludes that the NCR accused does not pose “a significant threat to the safety of the public”, the Review Board must order an absolute discharge.

[8] The meaning of the phrase “significant threat to the safety of the public” has been authoritatively set down in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 49-62, 69. The phrase refers to a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying. A very small risk of even grave harm will not suffice. A high risk of relatively trivial harm will also not meet the substantial harm standard. While the conduct must be criminal in nature, not all criminal conduct will suffice to establish a substantial risk. There must be a risk that the NCR accused will commit a “serious criminal offence”.

Many may find these guidelines established by law, and the courts, are of little consolation and with little recourse when the review board gets it wrong. And they do get it wrong… some would rightfully say, knowingly get it wrong. Read more