T-772-88
In the Matter of Sham Sunder Ahluwalia
(Appellant)
INDEXED AS: AHLUWALIA (RE) (T.D.)
Trial Division, Muldoon J.—Vancouver, Decem-
ber 6, 1988; Ottawa, February 1, 1989.
Citizenship — Appeal from denial of citizenship — Appel
lant found not guilty of murder by reason of insanity and
committed to psychiatric institute during Lieutenant Gover
nor's pleasure — Citizenship denied as Citizenship Act, ss. 19
and 20 precluding grant of citizenship if applicant under
probation order or confined to reformatory — Meaning of
'probation order", "confined" and "reformatory" — Ordinary
dictionary meanings applied.
Construction of statutes — Citizenship Act, ss. 19, 20 —
Meaning of "probation order", "confined" and "reformatory"
— New legislation dropping references to confinement to
insane asylum and mental incapacity as bars to citizenship —
Parliament's provisions to be interpreted as currently
expressed — Ordinary dictionary meanings applied.
Constitutional law — Charter of Rights — Equality rights
— Committal under Lieutenant Governor's warrant equivalent
neither to outright acquittal nor to conditional discharge.
This was an appeal from the denial of a citizenship applica
tion. The appellant has been committed to strict custody at a
psychiatric institute during the Lieutenant Governor's pleasure,
having been found not guilty of murder by reason of insanity.
The citizenship judge found that the appellant had been placed
in confinement, and should not be granted citizenship under
sections 19 and 20 of the Citizenship Act. Section 19 provides
that periods during which a person is under a probation order,
may not be counted as a period of residence. Section 20
provides that citizenship shall not be granted while a person is
under a probation order or confined in or an inmate of a
reformatory. The issues were (I) whether the appellant was
under a probation order; (2) whether an order of committal at
the Lieutenant Governor's pleasure after a finding of not guilty
by reason of insanity, is equivalent to a conditional discharge;
and (3) whether the appellant was confined in a prison or
reformatory. The appellant argued that since he had not been
convicted of any offence, the phrase "under a probation order"
did not apply to him. He also relied upon Secretary of State v.
Holmes, wherein Collier J. held that a conviction is required
before there can be a probation period.
Held, the appeal should be dismissed.
The appellant is "under a probation order" and "confined in"
and an "inmate or' a "reformatory", according to the ordinary
dictionary meanings of those words. It was not open to the
Court to ascertain Parliament's intention when it dropped the
references to confinement to an insane asylum and mental
incapacity as bars to citizenship. Legislative provisions must be
interpreted as currently expressed: Parliament said what it
meant and meant what it said. Probation and probation in
French connote a period of testing or effort to prove oneself
qualified and worthy of some enhanced status, grade, or reclas-
sification. The Forensic Psychiatric Institute at Port Coquitlam
is a "reformatory". The definition of "prison" in section 2 of
the Criminal Code is merely inclusive and open: it is not
exclusive or exhaustive. "Reformatory" is defined as an institu
tion where offenders against the law are sent with a view to
their reformation. Reformation is defined as including an
improvement in health. The psychiatric institute in question
confines and treats only those referred to it through the crimi
nal justice system.
Case law has established that an accused who has been found
not guilty by reason of insanity is not similarly situated with
one who is acquitted outright, in contemplation of Charter,
subsection 15(1). Nor is committal under a Lieutenant Gover
nor's warrant equivalent to a conditional discharge, although
the accused has not actually been convicted of the offence. The
Holmes case was distinguished as it dealt with the effect of a
conditional discharge, which puts the accused conditionally at
liberty. A committal at the Lieutenant Governor's pleasure puts
the accused conditionally in strict custody. A person under
committal during the Lieutenant Governor's pleasure is on
indefinite probation, until the Lieutenant Governor is satisfied
that he has proved himself to be trustworthy. The reason for
the verdict "not guilty by reason of insanity" (although an
accused clearly committed the offence) is the division of powers
in Canada: while Parliament has exclusive legislative jurisdic
tion over criminal law, the provinces have jurisdiction over the
treatment of mental disease.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Citizenship Act, S.C. 1974-75-76, c. 108, ss. 5(1) (as am.
by S.C. 1976-77, c. 52, s. 128), (3),(4), 19, 20.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix H, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), ss. 91(27), 92(7).
Criminal Code, R.S.C. 1970, c. C-34, ss. 542(2), 545(1)
(as am. by S.C. 1972, c. 13, s. 45), 546(3),(4),(5),
662.1(1) (as am. by S.C. 1974-75-76, c. 105 s. 20),
745.
Federal Court Rules, C.R.C., c. 663, RR. 902(2),
903(a).
Interpretation Act, R.S.C. 1970, c. I-23, ss. 11, 37(2),(3).
Interpretation Act, R.S.C., 1985, c. 1-21, s. 45(2),(3).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Swain (1986), 50 C.R. (3d) 97 (Ont. C.A.); Rebic
v. Coliver Prov. J. (1986), 2 B.C.L.R. (2d) 364 (C.A.);
Rex v. Trapnell, [1910] XXII O.L.R. 219; 17 C.C.C. 346
(C.A.); McCann v. Duffy (1982), 35 B.C.L.R. 133
(C.A.).
DISTINGUISHED:
Secretary of State v. Holmes, [ 1980] 1 F.C. 619 (T.D.).
REFERRED TO:
Regina v. Derkson (1972), 20 C.R.N.S. 129 (B.C. Prov.
Ct.); Swain v. The Queen, [1987] 1 S.C.R. xiv.
COUNSEL:
Jeffrey R. Ray for appellant.
Christopher Goodwin, amicus curiae.
SOLICITORS:
Howard Smith & Company, New Westmin-
ster, B.C. for appellant.
Bull, Housser & Tupper, Vancouver, amicus
curiae.
The following are the reasons for judgment
rendered in English by
MULDOON J.: The appellant seeks to have the
citizenship judge's non-approval of his application
for a grant of citizenship, under subsection 5(1) of
the Citizenship Act, S.C. 1974-75-76, c. 108, set
aside. Unfortunately the appeal will be dismissed
for the reasons which follow.
At the hearing of this appeal in Vancouver, on
December 6, 1988, the Court directed the submis
sion of written arguments on the part of the appel
lant's counsel and on the part of the amicus
curiae. Excellent written arguments have now been
received from both counsels. It is noted that at a
pre-hearing conference held in this matter on
November 28, 1988, in Vancouver, counsel for
both the Secretary of State and the Deputy Attor
ney General of Canada indicated that his instruc-
tions from both clients were to the effect that
neither would intervene in these proceedings. He
further indicated that the amicus curiae, desig
nated by the Deputy Attorney General, pursuant
to Rule 902(2) [Federal Court Rules, C.R.C., c.
663], is the counsel appointed to assist the Court
in all matters of facts and law in connection with
the appeal. The amicus curiae has indeed per
formed that task. Both he and the appellant's
counsel have evinced a high degree of professional
conduct in this matter.
Because the role of the amicus curiae is truly
that which is stated above, and not necessarily that
of an adversary, nor yet of a proponent, of an
appellant, both counsel were properly cautious of
the notion that they might submit an agreed state
ment of the facts, as true adversaries often do.
Accordingly they concluded that the facts upon
which the appellant's initial application for citizen
ship and this appeal are based, ought to be taken
from the citizenship judge's file lodged in the
Court's registry in this matter, pursuant to Rule
903(a), with emphasis on the facts found by the
citizenship judge. The Court agrees.
The appellant was born on June 7, 1956. He
arrived in Canada as a landed immigrant on May
9, 1979, at Vancouver International Airport. His
occupation was listed as an electrician.
On August 28, 1981, the appellant was charged
with the offence of "threatening" pursuant to sec
tion 745 of the Criminal Code [R.S.C. 1970, c.
C-34]. He was required to enter into a recogni
zance in the amount of $500 for the period of one
year. However, because the appellant failed to
appear at a scheduled hearing of his case, the
Court or judge granted a stay of proceedings.
On February 15, 1982, the appellant was
charged with the first degree murder of one, Pau-
line Mahal, according to the sworn information of
that date, a copy of which is on file. He pleaded
"not guilty" and was, on August 30, 1982, com-
mitted for trial. A verdict of "not guilty by reason
of insanity" was rendered on January 29, 1983,
and on that day, by order of Mr. Justice Esson, the
appellant was committed "to be kept in strict
custody in the Forensic Psychiatric Institute at
Port Coquitlam, British Columbia until the pleas
ure of the Lieutenant-Governor of the province is
known pursuant to section 542(2) of the Criminal
Code of Canada".
The appellant has been kept in strict custody at
that psychiatric institute since his committal there
to by Esson J. The appellant "enjoys some privi
leges within the institute and has some supervised
outings in the community", such as, for example,
his attendance at this appeal hearing in Court.
The appellant applied for a grant of Canadian
citizenship on August 25, 1987. He appeared
before citizenship judge R. Michael Latta on Feb-
ruary 11, 1988, in Vancouver.
The citizenship judge declined to approve the
appellant's application in reasons dated March 11,
1988. Citing no evidence to substantiate a favour
able recommendation under subsections 5(3) and
(4) of the Act, nor any evidence of any unusual
hardship, or of the appellant's services of excep
tional value to Canada, the judge declined to make
any recommendations in those regards. The citi
zenship judge held that the appellant had no dif
ficulty in meeting the essential requirements of
subsection 5(1) [as am. by S.C. 1976-77, c. 52, s.
128]. Nevertheless, he held that upon his interpre
tation of sections 19 and 20 of the Act, the appel
lant ought not to be granted citizenship. After
reviewing previous legislation [R.S.C. 1970, c.
C-19], in which confinement to "an asylum for the
insane" and mental "incapacity", inter alia,
barred an applicant's obtaining of citizenship, the
judge concluded his reasonings in these passages:
[lit is my considered opinion that to be kept in strict custody in
the Forensic Psychiatric Institute until the pleasure of the
Lieutenant Governor General of the Province is known is
confinement. And I further consider that while confined the
applicant has not adapted to, or had the opportunity to adapt to
the moral standards of Canadian life.
Citizenship is now a right, provided the applicant has complied
with the various standards designed to measure the extent to
which an alien has been integrated into Canadian society, and
it is incumbent upon a Citizenship Judge to decide whether, in
consideration of all of the requirements contained in the Act,
whether [sic] a person qualifies.
My concluding view is that Mr. Ahluwalia has been placed in
confinement and is receiving psychiatric treatment for a mental
disorder, and that while this condition exists, the right to
receive Canadian citizenship should not be granted.
The pertinent legislation on the subject runs as
follows:
19. Notwithstanding anything in this Act, no period during
which a person has, pursuant to any enactment in force in
Canada, been under a probation order, been a paroled inmate
or been confined in or been an inmate of any penitentiary, gaol,
reformatory or prison may be counted as a period of residence
for the purposes of this Act.
2041) Notwithstanding anything in this Act, a person shall
not be granted citizenship under section 5 or subsection 10(1)
or administered the oath of citizenship
(a) while he is
(i) under a probation order,
(ii) a paroled inmate, or
(iii) confined in or an inmate of any penitentiary, gaol,
reformatory or prison,
pursuant to any enactment in force in Canada;
The other provisions of section 20 are not in issue
here, for the appellant is not charged with, nor has
he been convicted of, any offence while in custody.
The amicus curiae has identified three issues
which were considered orally at the hearing and of
which the first and the third are the most impor
tant, thus:
I. Is the Appellant under a "probation order", as that term is
used in ss. 19 and 20 of the Citizenship Act, while kept in
custody at the pleasure of the Lieutenant-Governor of the
Province after having been found not guilty by reason of
insanity?
2. Is an order confining a person at the pleasure of the
Lieutenant-Governor after he is found not guilty by reason
of insanity equivalent to a "conditional discharge" under s.
662.1(1) of the Criminal Code for the purposes of ss. 19 and
20 of the Citizenship Act?
3. Is the Appellant confined in a "prison" or a "reformatory"
and thereby barred from obtaining citizenship by ss. 19 and
20 of the Citizenship Act?
The appellant's counsel, whose submissions were
first received, expressed the issue in essence the
same as what is seen in nos. 1 and 3 above.
Counsel makes no reply to the submissions of the
amicus curiae. Citing section 11 of the Interpreta
tion Act, cited R.S.C. 1970, c. I-23, the appellant's
counsel submits in pertinent passages:
The object, or mischief, that Sections 19 and 20 of the Citizen
ship Act seek to control can be discovered through an examina
tion of each section and their contents. Section 19 follows the
term, "under a probation Order" with the following phrase:
Being confined in or being an inmate of any penitentiary,
jail, reformatory or prison.
In each instance the Section appears to be referring to individu
als who have been punished as a result of criminal behavior. It
therefore follows that the term under a probation Order refers
to an individual who is serving a sentence, or punishment by
reason of some criminal act he committed.
Section 20 contains the same wording as Section 19 following
the term "under a probation Order" but as well, contains
Section 20(1)(b), which refers to a person charged with or on
trial for an offence under Subsection 28(1) or (2) or an
indictable offence under any Act of Parliament. Section
20(1)(d) refers to a person having been convicted of an offence
in respect of an act or omission referred to in the Criminal
Code. It therefore appears that Section 20 also refers to persons
who are being punished.
It is the Appellant's submission that Sections 19 and 20 of the
Citizenship Act cover the situation where an applicant for a
Citizenship is still serving a sentence as a result of a criminal
conviction. Section 19 and 20 of the Citizenship Act are
therefore only applicable to individuals serving a sentence, or
who have been convicted of a criminal offense.
Under Sections 601 and 720(1) of the Criminal Code of
Canada 1953-54, c. 51, the term, "sentence" is defined as
follows:
[quoted]
The Appellant was found not guilty by reason of insanity
pursuant to Section 542 of the Criminal Code. Therefore,
under the Criminal Code the Appellant is not serving a sen
tence pursuant to Section 601 and Section 720(1). It is the
Appellant's submission that since he is not serving a sentence
pursuant to the Criminal Code, he does not fall within the
term, "Probation Order" under Sections 19 and 20 of the
Citizenship Act.
The above reasoning is supported by the definition of the term
"probation" contained in Black's Law Dictionary, 5th Edition.
The definition of "Probation" is as follows:
A sentence releasing the Defendant into the community
under the supervision of a probation officer. The status of a
convicted person who is allowed his freedom after conviction
subject to the condition that for a stipulated period he shall
conduct himself in a matter approved by a special officer to
whom he must make periodic reports.
A further definition can also be found in Black's Law Diction
ary, 5th Edition.
A system of allowing a person convicted of some lessor
offence (frequently juveniles or first offenders) to avoid
imprisonment, under a supervision of sentence, during good
behavior, and generally under the supervision of a probation
officer.
The gravamen of each definition is that the individual has been
convicted of an offence and the probation period is the individu
als sentence.
As shown above, the Appellant was not, as a result of his
acquittal by reason of insanity, serving a sentence under the
Criminal Code. Therefore, it is submitted that the Appellant is
not under any probation Order.
CONCLUSION
The Appellant respectfully submits that since he has not been
convicted of any offence under the Criminal Code pursuant to
Sections 542 and 543 of the Criminal Code. The term, "Under
a Probation Order" contained in Sections 19 and 20 of the
Citizenship Act is not applicable to him. The Appellant relies
upon the proper, and logical, statutory interpretation of Sec
tions 19 and 20, as well as the definition of the term, "Proba-
tion" contained in the Black's Law Dictionary, 5th Edition. The
Appellant further relies upon the reasoning of Mr. Justice
Collier in Secretary of State v. Timothy E. Holmes, [1980] 1
F.C. 619.
Accordingly, it is submitted that the Citizenship Court's deci
sion dated the 11th day of March, 1988 be reversed, and the
Appellant be granted Citizenship.
The appellant's counsel in his able argument
nevertheless reads sections 19 and 20 of the Act as
if they provided for "a probation order as that is
defined and described in sections 662.1 through
664 of the Criminal Code". In support of that
interpretation, which is not expressed in the Citi
zenship Act, counsel relies on the decision of Mr.
Justice Collier of this Court in the case of Secre
tary of State v. Holmes, [1980] 1 F.C. 619 (T.D.).
The entire judgment runs as follows [at page 619]:
The appeal of the Secretary of State is dismissed. I am in
agreement with the result reached by the Citizenship Judge, ...
—that is: The period of time a person is under a probation
order pursuant to a conditional discharge is to be taken into
account in calculating the residence requirements under the
Citizenship Act, S.C. 1974-75-76, c. 108, provided the appli
cant successfully completed the probation period.
To put it briefly, it is my view the probation period referred
to in section 19 of the Citizenship Act is a period dependent
upon a conviction. Where, by virtue of section 662(1) of the
Criminal Code, R.S.C. 1970, c. C-34, as amended by S.C.
1972, c. 13, s. 57, there is no conviction, there can be no
probation period pursuant to that conviction.
The Holmes judgment is markedly distinguishable
from the appellant's case at bar. The learned
Judge was not considering the case of one who was
held at the pleasure of the Lieutenant Governor,
but rather the effect of a conditional discharge in
regard to the probation order in that case. Even so,
it is notable that Collier J. gave the effect to it
which he did, "provided the applicant successfully
completed the probation period". It seems that the
probation order contemplated by Collier J. was of
definite duration and expired whether or not the
person subject to it had received any benefit from
it or not. On the other hand a person held during
the Lieutenant Governor's pleasure is on indefinite
probation until the Lieutenant Governor in Coun
cil be persuaded that the committed person has
proved himself or herself to be trustworthy.
It is true that the appellant has not actually
been convicted of murdering Pauline Mahal, even
although she was, beyond a reasonable doubt,
killed by the appellant. Were it otherwise he
would, of course, have been entitled to a clear
verdict of "not guilty", since in such circumstance
he would have had nothing culpable to do with her
slaying. In other words, the appellant excuted the
actus reus, but was found to have insufficient
capability of appreciating the nature and quality
of his deadly deed or knowing that it was wrong,
as described in section 16 of the Criminal Code.
Perhaps he harboured a specific insane delusion
which to his belief justified or excused his act or
omission, again pursuant to section 16 of the
Criminal Code. The Court takes no joy in so
wounding the euphemisms of current sociology,
penology and psychiatry, but rather to express
surely and without gloss that this appellant's par
ticular misdeed shows him to have been homicidal-
ly dangerous and he might still be so. In this
regard he has to prove himself fit to be considered
no longer dangerous to himself and others. Com
mittal on a "lesser" indictable offence would have
involved the same considerations, absent the ele
ment of murder.
The reason for the verdict of "not guilty by
reason of insanity" with consequent committal
during the pleasure of the head of a provincial
state in Canada, is apparently the particular divi
sion of powers in the Canadian federal state.
Under section 91, head 27 of the Constitution Act
1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970,
Appendix II, No. 5] (as am. by Canada Act 1982,
1982, c. 11 (U.K.), Schedule to the Constitution
Act, 1982, Item 1)], Parliament has exclusive
legislative jurisdiction over "the Criminal Law ...
including the Procedure in Criminal Matters".
The treatment of persons suffering a disease of the
mind is not in strict constitutional terms a matter
of criminal law and procedure. This is so because
section 92, head 7 of the Constitution Act, 1867,
accords exclusive legislative power to the provin
cial legislatures over "the Establishment, Mainte
nance and Management of Hospitals, Asylums,
Charities and Eleemosynary Institutions in and for
the Province, other than Marine Hospitals".
Therefore, an accused who commits the wrongful
act of an offence—homicide here—while found to
be insane, departs (metaphysically) from the legis
lative jurisdiction of Parliament and is thereby
placed within the legislative jurisdiction of the
provincial legislature and is so transferred to com
mittal during the pleasure of the provincial head of
state. In that unitary state which is England and
Wales governmental powers are not parcelled out
among various federated components, and the ver
dict is "guilty, but insane".
When Parliament amended the previous legisla
tion in order to eliminate the provision that a
period of residence in Canada during confinement
in "an asylum for the insane" was not to be
counted, did it slip into a legislative oversight? Did
it intend to continue the disqualification of persons
in the appellant's situation or did Parliament
intend to permit confinement, such as the appel
lant's, to count toward the requisite period of
residence in Canada? The answer must be predi
cated on subsections 37(2) and (3) of the Interpre
tation Act which provide:
37....
(2) The amendment of an enactment shall not be deemed to
be or to involve a declaration that the law under such enact
ment was or was considered by Parliament ... to have been
different from the law as it is under the enactment as amended.
(3) The repeal or amendment of an enactment in whole or in
part shall not be deemed to be or to involve any declaration as
to the previous state of the law.
(Subsection 45(2) and (3), R.S.C., 1985, c. I-21.)
In effect, despite the amendments, one must inter
pret Parliament's provisions as they are currently
expressed for what they direct. Parliament's words
are to be interpreted in their ordinary meaning,
unless specially and specifically defined to mean
something different from their ordinary meaning.
In the result, Parliament said what it meant and
meant what it said.
The term "probation order", not being specially
defined in the Citizenship Act, can be understood
to bear the ordinary meaning of the important
word, "probation". The amicus curiae notes the
following dictionary definitions:
I. The action or process of testing or putting to the proof; trial,
experiment, investigation, examination.
2. The testing or the trial of a person's conduct, character, or
moral qualifications; a proceeding designed to ascertain
these: esp. in ref. to the period or state of trial.
3. In criminal jurisdiction: A system of releasing on suspended
sentence during good behaviour young persons, and especial
ly first offenders, and placing them under the supervision of
a probation officer, who acts as a friend and adviser.
Shorter Oxford English Dictionary,
3rd rev. ed., 1973, p. 1676.
Again, the French language version of sections 19
and 20 of the Act employs the expression ordon-
nance de probation. The dictionary definition of
"probation" in French is:
n.f. (1549; lépreuvel, 1350; lat. probatio, de probare 1prou-
verl). 1° Relig. Temps du noviciat religieux. Année de proba-
tion.—Temps d'épreuve qui precede le noviciat. 2° Dr. pén.
Méthode permettant le traitement des délinquants en vue de
leur reclassement.
Le Petit Robert, Dictionnaire de la longue française,
nouvelle édition revue, corrigée
et mise à jour pour 1985.
Stemming, as they do, from a common parent, the
words equally connote a period of testing or effort
to prove oneself qualified and worthy for some
enhanced status, grade, or reclassification.
It is clear that the same connotation resides in
the legal regime under which Mr. Justice Esson
ordered the appellant to be kept in strict custody in
the psychiatric institute until the pleasure of the
Lieutenant Governor be known. Here are the per
tinent provisions of the Criminal Code [as am. by
S.C. 1972, c. 13, s. 45], Part XVII, in appropriate
enumeration of the time, which demonstrate that
connotation:
542... .
(2) Where the accused is found to have been insane at the
time the offence was committed, the court ... before whom the
trial is held shall order that he be kept in strict custody in the
place and in the manner that the court ... directs, until the
pleasure of the lieutenant governor of the province is known.
545. (1) Where an accused is, pursuant to this Part, found
to be insane, the lieutenant governor of the province in which
he is detained may make an order
(a) for the safe custody of the accused in a place and
manner directed by him, or
(b) if in his opinion it would be in the best interest of the
accused and not contrary to the interest of the public, for the
discharge of the accused either absolutely or subject to such
conditions as he prescribes.
546....
(3) Where the lieutenant governor is satisfied that a person
to whom subsection (2) applies has recovered, he may order
that the person
(a) be returned to the prison from which he was removed
pursuant to subsection (1), if he is liable to further custody in
prison, or
(b) be discharged, if he is not liable to further custody in
prison.
(4) Where the lieutenant governor is satisfied that a person
to whom subsection (2) applies has partially recovered, he may,
where the person is not liable to further custody in prison, order
that the person shall be subject to the direction of the minister
of health for the province, or such other person as the lieuten
ant governor may designate, and the minister of health or other
person designated may make any order or direction in respect
of the custody and care of the person that he considers proper.
(5) In this section, "prison" means a prison other than a
penitentiary, and includes a reformatory school or industrial
school.
The Court finds that in the ordinary, generic
meaning of "probation order" in the Citizenship
Act, the above recited provisions of the Criminal
Code, among the others of that legal regime,
create the quintessential probation order. Since,
also, the word "reformatory" is not specially
defined in the Citizenship Act, the Court further
concludes that the Forensic Psychiatric Institute,
in which the appellant is confined, is a reformatory
or "maison de correction" within the ordinary,
generic meaning of those words. He must, surely,
prove himself to be trustworthy in order to earn his
release. The amicus curiae puts the matter in this
manner:
The Appellant's detention at the Institute is designed for the
treatment of his insanity until such time he proves himself to
have recovered. He can be said to be under a process of "testing
or putting to the proof" until such time as the Lieutenant-Gov
ernor is of the view that he is sufficiently recovered to be
released. This period may be considered a "testing or trial of a
person's conduct, character".
Nothing which Parliament has expressed and
enacted in the Citizenship Act, sections 19 and 20,
leads to any conclusion other than that the appel
lant here is under a "probation order" and has
been "confined in or [is] an inmate of [a] ...
reformatory" within the meaning of the Act.
But, the appellant argues that because he is
undergoing treatment and not per se punishment,
it ought to be emphasized that he was not convict
ed, but rather found "not guilty". To which one
must always add in the same breath "by reason of
insanity". Accordingly one cannot merely equate
the appellant's verdict with a clear acquittal as the
Court earlier above mentioned. One is not con
fined in order to prove one's self if possible
through reforming when one is acquitted. Indeed,
when the twentieth century was no more than a
decade old, Meredith J.A. of the Ontario Court of
Appeal in Rex v. Trapnell, [1910] XXII O.L.R.
219; 17 C.C.C. 346, wrote for the Court [at page
224 O.L.R.; 351 C.C.C.]:
The case seems to me to come under sec. 192 of the Criminal
Code [aiding or permitting escape from lawful custody]; the
men were in lawful custody under sentence of imprisonment for
less than life. The order at the trial of each was that he be kept
in strict custody until the pleasure of the Lieutenant-Governor
should be known; the order of the Lieutant-Governor was that
he be conveyed to and detained in the Provincial Asylum at
Hamilton. These things surely amount to a sentence of impris
onment, and none the less so because "indeterminate". It is less
than imprisonment for life, because, although it may last for
life, yet it may be shorter—a day, a month, a year or years.
Again in the same vein, Mr. Justice Hinkson, in
McCann v. Duffy (1982), 35 B.C.L.R. 133, wrote
for the unanimous Court of Appeal [at pages 134
and 135]:
On 7th February 1973 the appellant was found not guilty by
reason of insanity on a charge of non-capital murder. Pursuant
to the provisions of s. 542(2) of the Criminal Code, R.S.C.
1970, c. C-34, it was ordered that the appellant be kept in strict
custody at the Riverside Unit of the Riverview Hospital at
Essondale until the pleasure of the Lieutenant-Governor of the
province of British Columbia was made known. By the provi
sions of the Criminal Code the result of such a verdict is to
impose an indeterminate sentence on the accused: Re
Kleinys, 51 W.W.R. 597, 46 C.R. 141, [1965] 3 C.C.C. 102, 49
D.L.R. (2d) 225 (B.C.). On 16th February 1973 the pleasure of
the Lieutenant-Governor was made known by the passing of
O.C. 591 recommending that the appellant be detained at
Riverview Hospital until further order.
The question has arisen as to whether an
accused who has been found not guilty by reason
of insanity is similarly situated with one who is
simply acquitted outright, in contemplation of sub
section 15(1) of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.)]. The resolution of that question
appears clear to Thorson J.A. in R. v. Swain
(1986), 50 C.R. (3d) 97, where he wrote for the
majority of the three-judge panel of the Ontario
Court of Appeal [at page 148]:
As was held by this Court in Re M. and R. (1985), 51 O.R.
(2d) 745, 47 C.R. (3d) 355 (sub nom. R. v. A.M.), 21 C.C.C.
(3d) 330, 21 D.L.R. (4th) 397, 16 C.R.R. 361, S. 15(1) of the
Charter requires that those who are similarly situated be
treated similarly. I do not accept that an insane acquittee and a
person who has been acquitted simpliciter are similarly situat
ed. In the case of an insane acquittee like Mr. Swain, it has
been found at trial that he committed the acts charged and at
the time he committed them he was insane. This finding raises
questions as to his dangerousness to society and his need for
treatment for his mental disorder. Section 542(2) is the first
step towards answering those questions, and answering them
within a system the very existence of which, in my opinion,
recognizes that those questions are qualitatively different from
the kind of questions that are generally thought of as being
appropriate for decision by a criminal court.
The majority judgment in Swain was applied by
Mr. Justice Esson for himself and a colleague in
the unanimous disposition of the case of Rebic v.
Coliver Prov. J. (1986), 2 B.C.L.R. (2d) 364
(C.A.) where he wrote [at page 386]:
1 agree with the conclusion that a person acquitted by reason
of insanity is not similarly situated with one acquitted by a
verdict of not guilty. Section 542(2) is a part of the statutory
scheme, affecting insane persons charged with crimes, which
also includes ss. 16 and 543 to 547 of the Code.
The Supreme Court of Canada, on March 26,
1987, accorded leave to appeal in Swain v. the
Queen, [1987] 1 S.C.R. xiv.
Earlier above, the Court stated that the case of
Secretary of State v. Holmes (supra) is distin
guishable from the present case because a condi
tional discharge is quite distinct in nature and
operation from committal at the Lieutenant Gov
ernor's pleasure. Obviously, the conditional dis
charge, as the name implies, puts the accused
conditionally at liberty, whereas the committal
puts the accused conditionally in strict custody
until he proves his trustworthiness (or "cure" it
may also be said) to the Lieutenant-Governor's
satisfaction.
Indeed, as is provided in subsection 662.1(1) [as
am. by S.C. 1974-75-76, c. 105, s. 20] of the
Criminal Code, the Court, where the individual
pleads, or is found, guilty, may if it considers it to
be in the best interests of the accused, and not
contrary to the public interest, order that the
accused by discharged absolutely or upon condi
tions prescribed in a probation order. The accused
is not thereby incarcerated. However in this appel
lant's situation of having been found not guilty by
reason of insanity, Parliament clearly considers
that it is neither in the accused's best interests, nor
in the public interest, to set him at liberty. Parlia-
ment directs that such a person, on the contrary,
be kept in close custody.
For a longer treatise on the subject of dis
charges, absolute and conditional, the case of
Regina v. Derkson (1972), 20 C.R.N.S. 129 (B.C.
Prov. Ct.) and its following annotation are noticed.
The Court holds that the appellant's circumstances
under a Lieutenant Governor's warrant are far
from the equivalent of a conditional discharge.
The Court also considers that the Forensic Psy
chiatric Institute is generically a reformatory/mai-
son de correction, as such is not specifically
defined in the Citizenship Act. The definition of
prison in section 2 of the Criminal Code is merely
inclusive and open: it is not exclusive or exhaus
tive. The same Shorter Oxford English Dictionary
mentioned above defines "reformatory" at page
1778, as:
... designed for reforming. B. 5b. An institution to which ...
offenders against the law are sent with a view to their
reformation.
On the same page "reformation" is defined as
including an "improvement in health" which
surely includes physical and mental health. The
psychiatric institute in Port Coquitlam confines,
houses and treats, according to the submissions of
the amicus curiae, only those persons referred to it
through and from the criminal justice system.
Because the appellant is confined in an institution
where he is to prove himself, with the help of the
psychiatric staff, in order to achieve improvement
of his mental health, and because the purpose of
the institution is designed and directed to that very
objective, it is a "reformatory" within the meaning
of the Citizenship Act, sections 19 and 20.
In summation, having been found not guilty of
first degree murder by reason of insanity, and
having been ordered to be kept in strict custody in
the Forensic Psychiatric Institute at Port Coquit-
lam, B.C., the appellant is found to be "under a
probation order" and to be "confined in", and an
"inmate of", a "reformatory" as those terms are
employed, generically and without any special or
out-of-the-ordinary definitions, in sections 19 and
20 of the Citizenship Act. Accordingly, the citizen
ship judge's decision dated March 11, 1988, of
non-approval of the appellant's application for a
grant of citizenship, is hereby confirmed, together
with that judge's declining to make any favourable
recommendation under subsection 5(4) of the Act.
The appeal is dismissed.
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