Une condition prévue dans une probation exigeant que l'accusé prenne des médicaments prescrits par un psychiatre est illégale

R. v. L. (J.J.), 2001 MBCA 21 (CanLII)

3 The sentencing judge imposed a disposition of four months’ open custody, followed by one year of supervised probation. As one of the terms of the probation order, he ordered that the appellant take medication as prescribed by a Dr. Varsamis, a psychiatrist. The appellant appeals from this provision in the probation order.

4 The appellant’s position is that the requirement to take medication is illegal. He referred to The Mental Health Act, C.C.S.M., c. M110 (the Act). Section 2 of the Act states that a person who is 16 years of age or more is mentally competent to make treatment decisions for the purposes of the Act. Section 26 deals with consent and the right of a patient to consent to or refuse psychiatric or other treatment. Section 29 provides that only in certain circumstances may treatment be administered without the consent of a patient. The appellant submits that a disposition which requires him to take medication without his consent is contrary to the provisions of the Act and is unconstitutional, as being contrary to s. 7 of the Canadian Charter of Rights and Freedoms (the Charter).

5 He relies on the decision of this court in R. v. Wright (A.S.) reflex, (1996), 110 Man.R. (2d) 191, and on the case of R. v. Rogers 1990 CanLII 432 (BC C.A.), (1990), 61 C.C.C. (3d) 481 (B.C.C.A.), in support of his submission. In the former case, this court stated that a term of a probation order that required the accused to take medication was illegal. In the latter case, a five-person court determined that the appellant, who was suffering from schizophrenia, ought not to be compelled to take psychiatric treatment or medication. The court concluded that the risk that the offender would be subjected to unusual or dangerous medication or treatment, while minimal, did exist and that such a term in a probation order “is contrary to the fundamental principles of justice and, save in exceptional circumstances, cannot be saved by s. 1 of the Charter” (at p. 488).

6 Parliament empowered a sentencing judge in s. 23(2)(g) of the Young Offenders Act to include in a probation order “such other reasonable conditions” as the court considers desirable. By virtue of s. 732.1(3)(h) of the Criminal Code, a sentencing judge is empowered to impose “such other reasonable conditions as the court considers desirable” for securing the good conduct of the accused and for preventing a repetition by him of the same offence or the commission of other offences. These broadly worded provisions do not lead me to conclude that a sentencing judge is entitled to impose a condition as part of a probation order that contravenes provincial legislation or a provision of the Charter.

7 Crown counsel referred the court to R. v. Murphy (T.P.) reflex, (1998), 126 Man.R. (2d) 138 (C.A.). In the course of allowing a sentence appeal in that case, this court included conditions in the probation order that the appellant attend for a psychiatric assessment and that he follow the recommended treatment and medication regime. In so doing, the court did not refer to the earlier Wright decision, and it would appear from the reasons that the issue of the legality of requiring the appellant to follow a medication regime was not considered.

8 For these reasons, I would allow the appeal and delete from the probation order the provision that the appellant take medication as prescribed by Dr. Varsamis.