10/04/2015 04:00 EDT | Updated 10/04/2016 01:12 EDT

Tory bill for mentally ill man who killed his children tested in B.C. court

VANCOUVER — Conservative government changes to the Criminal Code will soon be tested in the case of a mentally ill British Columbia man who killed his three children — it's the same test that already failed in Quebec.

The B.C. Supreme Court found Allan Schoenborn not criminally responsible for the killings that occurred seven years ago. But Crown lawyers will be in court on Thursday taking another step to designate him a "high-risk accused" based on laws created less than two year ago.

The high-risk label was created in legislation passed in July 2014, and was personally announced by Prime Minister Stephen Harper at a news conference with the family of Schoenborn's victims.

But Quebec Court Judge Thierry Nadon ruled in February that Bill C-14  "does not apply retrospectively," in the case of a Montreal man found not criminally responsible for killing two pedestrians with his car.

Had the law been retrospective, it would have attached new consequences to an event that took place before the law was enacted, say the court documents.

"It is a bit stupid as a new law," said Rodolphe Bourgeois, the lawyer for the Quebec man in his late 20s who suffers from paranoid schizophrenia.

The judgment was sound and Quebec prosecutors did not appeal, Bourgeois said.

"So the psychiatrist and the review board maintain their discretion to judge his freedom according to clinical standards, instead of having a legal straitjacket."

The Quebec ruling could be persuasive but not binding on Schoenborn's court case playing out in New Westminster.

On Friday, lawyers for Schoenborn told the judge they intend to argue that the law does not apply to the man's past crimes at a hearing later this fall.

Schoenborn has been detained at a suburban Vancouver psychiatric hospital since he was declared not criminally responsible for the April 2008 killings. He stabbed his 10-year-old daughter and smothered his eight and five-year-old sons in their Merritt, B.C., home.

An independent tribunal, called the B.C. Review Board, held a lengthy hearing last winter examining psychiatric evidence about the risks the man poses to public safety. It decided his rehabilitation plan could include escorted outings into the community.

B.C. Crown prosecutors found no legal basis to appeal but in early September initiated the new process for "high-risk accused" that would block Schoenborn from leaving the hospital indefinitely.

During Schoenborn's annual review, Neil MacKenzie with B.C.'s Criminal Justice Branch repeatedly told reporters the branch was taking the position that Bill C-14 applied "retrospectively."

In the lead up to the passage of the law, mental-health experts argued during Parliamentary hearings against meting out penalties backwards in time — especially if a patient is now functioning well.

Lawyer and psychologist Patrick Baillie said he raised the retrospective issue, to which then-federal justice minister Rob Nicholson responded that the legal changes weren't aimed at people deemed fit for escorted absences.

"And yet that's exactly what the Crown's now arguing in Mr. Schoenborn's case," said Baillie. "He has been progressing through treatment, he has been compliant and an excellent example of what treatment is supposed to look like.

"And instead, the response from the prosecutor is to seek to have him yanked back inside with no passes."

A court in Brockville, Ont., may have been the first in Canada to designate a woman a "high-risk offender" on Sept. 22.

But Marlene Carter committed the offences after the new legislation was passed, according to the Ontario's Ministry of the Attorney General. She was found not criminally responsible in relation to seven counts, including four for assault.

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Tamsyn Burgmann, The Canadian Press