High-risk offender status is unconstitutional in fatal Quebec daycare crash: lawyers

The scene outside a daycare centre in Laval, Que., Thursday, Feb. 9, 2023, where a bus crashed killing two children. THE CANADIAN PRESS/Graham Hughes

Lawyers for a Quebec man who killed two children and injured six others when he drove a city bus into a Montreal-area daycare in 2023 say it would be unconstitutional for a judge to declare him a high-risk offender.

A Quebec Superior Court hearing began Monday in Laval, Que., in the case of Pierre Ny St-Amand, who in April was declared not criminally responsible for his actions because of a mental disorder. The Crown is seeking to have Justice Éric Downs declare Ny St-Amand a high-risk offender, which would impose stricter rules on him while he is detained at a psychiatric hospital.

But Ny St-Amand’s lawyers want the judge to strike down the section of the Criminal Code that allows courts to designate people deemed not criminally responsible as high-risk, arguing it violates the Canadian Charter of Rights and Freedoms. They say the high-risk status assumes that such offenders are irredeemable and can never be reintegrated into society.

In April, Downs ruled that Ny St-Amand was likely in psychosis when he crashed the bus into the Laval daycare, killing four-year-old Jacob Gauthier and a five-year-old girl named Maëva, whose family name is covered by a publication ban at the request of her parents. Ny St-Amand has maintained he doesn’t remember what happened. He is currently detained at the Philippe-Pinel psychiatric hospital in Montreal.

During a hearing in September, the Crown argued that Ny St-Amand’s actions were so brutal that he must be considered a high-risk offender, and there is a “significant likelihood” he will be violent again. The high-risk status would prevent him from leaving the psychiatric hospital except for medical reasons or for the purposes of his treatment. It would also limit the decisions that the province’s mental health review board can make in his case. Any changes to his treatment plan or to the restrictions of his movements would need to be put before the Quebec Superior Court.

In an August court filing, Ny St-Amand’s lawyers argued that the high-risk status violates the Charter rights to life, liberty and security of the person, to protection from cruel and unusual punishment, and to equality under the law. They said the designation is “degrading” and presupposes that offenders are “beyond rehabilitation.”

“This treatment is comparable to a strict life sentence in hospital, since the (not criminally responsible) person designated as (high-risk) will never realistically be able to reintegrate into society,” they said. “This declaration therefore places the (offender) in front of an insurmountable chasm.”

They also said the designation “constitutes a return to the stereotype of the ‘criminal lunatic,’” and that it reinforces the idea that people with mental illnesses are more dangerous than other offenders.

In its response, the Crown countered that the high-risk status is subject to annual review and can be rescinded. It also pointed to expert testimony from a psychiatrist who said Ny St-Amand could be violent again if he has another psychotic episode.

“This is not a matter of perpetuating any myth whatsoever,” the court filing reads. “In the specific case of (Ny St-Amand), experts believe that the risk of violent recidivism is evident in the event of a psychotic relapse.”

In practice, however, it’s “not easy at all” for offenders to have their high-risk status removed, said Emmanuelle Bernheim, a professor at the University of Ottawa who holds the Canada Research Chair in mental health and access to justice. That’s in part because one of the criteria for applying it is the severity of the crime – which does not change.

The high-risk offender status was added to the Criminal Code in 2014 by the Conservative government of Stephen Harper, following public outcry over cases including that of Vince Li, a man who beheaded a fellow passenger on a Greyhound bus in Manitoba in 2008. In early 2014, it was reported that Li would be allowed unescorted trips from the mental hospital where he was detained.

Bernheim said the review boards that make such decisions are supposed to look only at the current risk the accused poses to public safety, and not at the original crime. “They can’t be punished for what they have done because they’re not responsible,” she said.

But the high-risk designation removes that power from the review boards and requires courts to sign off on all changes regarding such offenders, she said.

Testifying in court on Monday, Dr. Mathieu Dufour, head of psychiatry at the Philippe-Pinel institute, said there’s an additional stigma associated with being designated high-risk. It can also cause people to start losing hope, which can affect their level of functioning and their mental well-being, he said.

The hearing will continue on Wednesday.

This report by The Canadian Press was first published Nov. 10, 2025.

By Maura Forrest, The Canadian Press