The Person in Charge of the Mental Health Centre, Penetanguishene v. Magee et al.

[Indexed as: Penetanguishene Mental Health Centre (Person in Charge) v. Magee]

80 O.R. (3d) 436

Court of Appeal for Ontario,

Cronk, Juriansz and LaForme JJ.A.

May 16, 2006

Criminal law -- Mental disorder -- Dispositions -- Appeal by hospital -- Review board accepting that accused found NCR with respect to three first degree murder charges continued to pose high to very high risk of re-offending especially to women -- Board concluding that risk could be managed by transfer to medium security hospital with no off-unit privileges apart from emergencies -- Maximum security hospital where accused in custody for almost 30 years appealing disposition -- Review Board applied wrong test as focused solely on risk management -- Evidence showing that conditions in medium security unit would be more onerous and restrictive -- Accused would not have access to vocational therapy that improved his mental health and reduced his risk to the public while in maximum security inference from evidence that accused hoping transfer would increase access to women should have sounded alarm bell -- Fact accused wished transfer despite acknowledging it might cause him difficulties doesn't obviate need for board to consider all of s. 672.54 factors including accused's liberty interest -- Review board erred by failing to give meaningful consideration to all of statutory factors in s. 672.54 before imposing disposition -- Appeal allowed and new hearing before board ordered. [page437]

The respondent was found not guilty by reason of insanity on a charge of first degree murder in 1977. In 1980, he was found not guilty by reason of insanity on two additional charges of first degree murder, one charge of rape and one charge of indecent assault. He was diagnosed as suffering from an antisocial personality disorder, narcissistic personality disorder, psychosexual disorder, sexual sadism and transvestic fetishism. He was being held in a maximum security mental health facility, MHCP. At his 2005 Ontario Review Board hearing, the respondent requested a transfer to a medium security facility. All three experts who testified before the Review Board were unanimous in their views that the respondent posed a serious risk to the public, especially women. They agreed that his level of dangerousness had not subsided since his commission of the index offences, that his prognosis was extremely poor and that he posed a very high risk to reoffend. The Review Board accepted the unanimous position of the parties regarding the severity of the threat posed by the respondent to the safety of the public, but found that his risk could be managed in a medium security facility. The Board ordered that the respondent be transferred from MHCP to a medium secure unit at CAMH in Toronto and that he be afforded no off-unit privileges save for emergency or compassionate purposes. MHCP appealed.

Held, the appeal should be allowed.

The requirement in s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46 that the "least onerous and least restrictive" disposition be made is not free-standing: it cannot be viewed in isolation from the other factors enumerated in s. 672.54. Parliament's intent was to require a review board to consider, at every step of s. 672.54, the factors outlined in that section. The test for the making of a disposition order requires that the disposition, including its conditions, be evaluated as a whole in accordance with all the requirements of s. 672.54. At every step of this evaluation process, consideration must also be given to the liberty interests of the NCR accused. In this case, once the Review Board determined the risk to public safety posed by the respondent, it erred in law by effectively confining its analysis of an appropriate disposition to the question whether the respondent's identified risk could be "managed" in a medium secure setting at CAMH. In so doing, the Review Board failed to fashion a disposition for the respondent based on consideration of the mandatory requirements of s. 672.54. The Review Board was not concerned with the respondent's treatment, his needs or his liberty interests, but rather with his "incapacitation" or "warehousing" to ensure that his risk could be contained. There was evidence before the Board that the respondent had considerable freedom of movement at MHCP and that he worked in a woodworking shop there for five hours a day, which provided him with a sense of accomplishment and structure. At CAMH, he would be required to reside within a double-locked medium secure unit with no access to off-ward programming or privileges save for emergency or compassionate purposes on an escorted basis. The medium secure units at CAMH were not set up to accommodate patients on a long-term basis. Few, if any, vocational, educational and recreational facilities or programs were provided for residents on either of CAMH's two medium secure units, and no woodworking facility was available. The respondent became more sexually heightened with any increase in stress, and the restrictive conditions at CAMH would be difficult and frustrating for him and would cause a deterioration in his mental health and an increase in his stress, with an attendant increase in the risk posed by him to the safety of the public. While the Review Board emphasized in its reasons that the respondent, knowing the challenges that faced him on the medium secure unit at CAMH, nevertheless requested the transfer, the application of the s. 672.54 requirements cannot be avoided, or satisfied, by the fact that an NCR accused wishes to be transferred, knowing that the consequences of the [page438] requested transfer may cause him difficulties. Indeed, given the evidence that the respondent persisted in seeking a transfer to a medium secure facility because he believed it would facilitate his desired access to women, his motivation in seeking a transfer should have sounded an alarm bell for the Review Board. Although the Review Board acknowledged that "one cannot simply look at whether a facility has bars, instead of doors, or a perimeter fence" in determining the "least onerous and least restrictive disposition", the Board failed to evaluate the evidence of the "on-the-ground" conditions of the respondent's proposed detention at CAMH in comparison to those that governed his detention at MHCP. In all the circumstances, the Review Board's conclusion that its disposition was the least onerous and least restrictive disposition available for the respondent was tainted by legal error. The Board's disposition was not made after meaningful consideration of the requisite statutory factors, namely, the need to protect the public from the respondent, the respondent's mental condition, his other needs, and his reintegration into society.

APPEAL from the disposition order of the Ontario Review Board under s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C.46, dated May 24, 2005.

Cases referred to Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 222 B.C.A.C. 1, 206 C.C.C. (3d) 161, 36 C.R. (6th) 1, 264 D.L.R. (4th) 10, 346 N.R. 1, 2006 SCC 7; Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R. 498, [2003] S.C.J. No. 67, 16 Admin. L.R. (4th) 1, 182 C.C.C. (3d) 193, 19 C.R. (6th) 1, 116 C.R.R. (2d) 304, 237 D.L.R. (4th) 1, 318 N.R. 73, 319 O.A.C. 201, 2004 SCC 20; Pinet v. St. Thomas Pyschiatric Hospital, [2004] 1 S.C.R. 528, [2003] S.C.J. No. 66, 182 C.C.C. (3d) 214, 19 C.R. (6th) 21, 237 D.L.R. (4th) 23, 317 N.R. 365, 185 O.A.C. 8, 2004 SCC 21; R. v. Owen, [2003] 1 S.C.R. 779, [2003] S.C.J. No. 31, 174 C.C.C. (3d) 1, 11 C.R. (6th) 226, 225 D.L.R. (4th) 427, 173 O.A.C. 285, 2003 SCC 33; R. v. Swain, [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253, 3 C.R.R. (2d) 1, 125 N.R. 1, 47 O.A.C. 81; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 175 D.L.R. (4th) 193, 241 N.R. 1 Statutes referred to An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, c. 43 Canadian Charter of Rights and Freedoms, s. 7 Criminal Code, R.S.C. 1970, c. C-34, ss. 542-547 Criminal Code, R.S.C. 1985, c. C-46, ss. 672.54 [as am. S.C. 1991, c. 43, s. 4], 672.78

Sara Blake and Jim Smith, for appellant. Christian Herbert Harold Magee, in person. Daniel J. Brodsky, amicus curiae. Riun Shandler, for respondent Her Majesty the Queen. Janice E. Blackburn, for respondent The Person in Charge of the Centre for Addiction and Mental Health. [page439]

The judgment of the court was delivered by

CRONK J.A.: --

[1] We are concerned on this appeal with the appropriateness of that part of a disposition order made by the Ontario Review Board that directs that the respondent, Christian Herbert Harold Magee, be transferred from a maximum security mental health facility in Penetanguishene to a medium secure facility in Toronto. At issue is: (i) whether the Review Board erred in law when fashioning its disposition for Mr. Magee by applying the wrong legal test under s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46; and (ii) whether the challenged part of the disposition order is unreasonable or cannot be supported by the evidence adduced at the Review Board hearing.

[2] On October 21, 1977, Mr. Magee was found not guilty by reason of insanity on a charge of first degree murder under the statutory scheme then in place under the Criminal Code, R.S.C. 1970, c. C-34, ss. 542-547, concerning mentally ill offenders. On January 5, 1980, he was found not guilty by reason of insanity on two additional charges of first degree murder, one charge of rape and one charge of indecent assault.

[3] From 1977 until 1992, Mr. Magee was held in custody at the Mental Health Centre in Penetanguishene ("MHCP") under warrants of the Lieutenant Governor in Council. Commencing in 1992, under new provisions of the Criminal Code regarding persons found "not criminally responsible" ("NCR") on account of mental disorder, [See Note 1 below] Mr. Magee came under the jurisdiction of the Ontario Review Board. He has since been detained in the maximum security Oak Ridge Division of MHCP. In the result, Mr. Magee, who is now 58 years of age, has been detained in custody at Oak Ridge for almost 29 years.

[4] For many years, Mr. Magee sought a transfer from Oak Ridge to a medium secure mental health facility. The Review Board rejected his transfer requests and ordered his continued detention at Oak Ridge. At his 2005 Review Board hearing, Mr. Magee renewed his request for a transfer to a suitable medium secure facility in Ontario. He did not seek access to the community. [page440]

[5] On May 24, 2005, the Review Board ordered, in part, that Mr. Magee be transferred to, and detained at, a medium secure unit of the Centre for Addiction and Mental Health ("CAMH") in Toronto. Under the Board's disposition order, a program is to be created for Mr. Magee's detention in custody and rehabilitation within that unit and, at the discretion of the person in charge of CAMH, Mr. Magee may attend within or outside of CAMH for necessary medical, dental, legal or compassionate purposes, on notice to the local police of his entry into the community. Although not reflected in its formal disposition order, the reasons of the Review Board indicate that Mr. Magee is to be detained in an all-male medium secure unit at CAMH.

[6] The appellant, the administrator of MHCP, submits that the Review Board erred in law by misconceiving or ignoring the mandatory statutory requirements of s. 672.54 of the Code, thereby applying the wrong legal test under that section when making a disposition for Mr. Magee. It also submits that the Review Board's disposition is unreasonable and that it cannot be supported by the evidence led before the Review Board. CAMH and the Crown support these submissions.

[7] For the reasons that follow, I would allow the appeal and refer the matter back to the Review Board for an expedited rehearing.

I. Facts

(1) Index offences

[8] The circumstances giving rise to the index offences were horrific and violent.

[9] On June 15, 1976, Mr. Magee enticed a 15-year-old girl to accept a ride in his truck. He then strangled her, stabbed her in the throat and chest area, cut her across the abdomen above her vagina, and raped her. Until his appeal from his conviction for first degree murder was dismissed in 1979, Mr. Magee denied any involvement in these crimes. At that time, he informed the authorities of his commission of additional offences, namely, two further murders, a rape and a sexual assault perpetrated during the period between March 1974 to November 1975.

[10] The first of these additional offences involved the murder of a 19-year-old girl, who Mr. Magee grabbed on March 2, 1974 when she was on her way home after shopping at a variety store and purchasing a pizza. Mr. Magee appears to have made sexual demands and, when the victim refused and struggled, he slashed her throat with a knife (nearly severing her head from her body), and then sexually assaulted and robbed her. [page441]

[11] The next offence took place on June 20, 1975. The female victim was returning home from a local library when Mr. Magee came up behind her, grabbed her around her throat, and ordered her to remove her clothes. When she refused, he tightened his grip around her throat, strangling her until she passed out. After she recovered consciousness, it was discovered that her vagina had been injured and it appeared that she had been sexually assaulted.

[12] The third offence, another murder, occurred on October 20, 1975. On this occasion, Mr. Magee strangled a 19-year-old female acquaintance and knifed her in the throat. Although the victim's underwear was removed, no signs of a sexual attack were later detected. Mr. Magee acknowledged that he went to the victim's home and, on gaining entry, grabbed her and forced her to the floor for the purpose of having sex. He claimed that he did not carry through with this act, but admitted that he had no control over what he was doing and that he strangled the victim, first with his hands and then with a shoelace, which he tied around her throat. He then stabbed her in the throat with a knife.

[13] The last index offence took place on November 3, 1975. It involved the rape of a 14-year-old female hitchhiker who accepted a ride from Mr. Magee. Mr. Magee struck the victim in the face, tore her clothes off, had forced intercourse with her causing lacerations to her vagina, strangled her until she lost consciousness, and hit her on the head with a pop bottle. She was later found naked and semi-conscious on the road. She sustained a fractured skull, among other injuries.

(2) Mr. Magee's mental condition and risk level

[14] Mr. Magee was represented by counsel at the 2005 Review Board hearing. He did not testify and elected to call no evidence at the hearing.

[15] Three expert witnesses testified before the Review Board: Dr. Lisa Ramshaw -- Mr. Magee's treating psychiatrist at MHCP; Dr. Philip Klassen -- a forensic psychiatrist; and Dr. Padraig Darby -- also a psychiatrist. The latter two experts are both Deputy Clinical Directors of the Law and Mental Health Program at CAMH.

[16] The Review Board also had the benefit of: (i) an 84-page report from the administrator of MHCP dated February 17, 2005 (the "Hospital Report"), which included various historical assessments of Mr. Magee's medical and psychiatric condition and his level of risk to the public during the years 1977 to 2005; (ii) a February 1992 report prepared by Dr. John Bradford, then the [page442] Director of the Forensic Service and the Sexual Behaviours Clinic at the Royal Ottawa Hospital in Ottawa, following phallometric and psychometric testing of Mr. Magee at that hospital in the fall of 1991; (iii) a February 2005 risk assessment by MHCP (the "2005 Risk Assessment"), which formed part of the Hospital Report; and (iv) a detailed psychiatric and sexological assessment of Mr. Magee, dated March 16, 2005, prepared by Dr. Klassen of CAMH for the purpose of evaluating Mr. Magee's transfer request.

(i) and (ii) Historical Assessments and the Bradford Report

[17] Mr. Magee has been assessed by numerous mental health care professionals during his detention at Oak Ridge. He was diagnosed at that facility as suffering from "antisocial personality disorder; narcissistic personality disorder; psychosexual disorder; sexual sadism; transvestic fetishism; rule out pedophilia [sic]". This diagnosis remained essentially unchanged from 1992 to 2005.

[18] In his 1992 report, Dr. Bradford described Mr. Magee as "a serial murderer" who "presents with a problem of very serious sexual violence directed towards young adult and adolescent females". Mr. Magee admitted to Dr. Bradford that he engaged in coercive sexual and rape fantasies involving adults, fantasies with elements of rape and "lust murder" followed by cannibalism, and fantasies of sex with his sister and his daughter. In addition, on testing, Mr. Magee showed "a significant level of sexual arousal to a highly sadistic rape scenario". He also demonstrated age and sex erotic preferences that were "clearly directed towards adolescent females than [sic] older female children; adult females and younger female children", essentially indicating a hebephilic pattern of response. Mr. Magee was also tested for heterosexual pedophilia and, according to Dr. Bradford, clearly demonstrated responses in the pedophilic range, with evidence of sexual sadism to heterosexual pedophilia.

[19] Dr. Bradford diagnosed Mr. Magee as having multiple psychosexual disorders consisting of sexual sadism, tranvestitic fetishism and pedophilia, plus an antisocial personality disorder. He described Mr. Magee's profile as "clearly one . . . that fits into a pattern of sexually sadistic serial homicide" and expressed the opinion that, at the time of his report, Mr. Magee was "still an extreme risk to women in the community".

[20] According to Dr. Bradford, Mr. Magee's overall prognosis was "extremely poor" and he constituted "a very significant treatment challenge". Dr. Bradford also stated in his report that, [page443] "[t]here is no scientific evidence whatsoever that any psychotherapeutic intervention is likely to also change the prognosis in a man who commits serial sexually sadistic homicide." In Dr. Bradford's opinion, the only interventions that might have some success in Mr. Magee's case were biological based treatments (e.g., antiandrogen medications) and other pharmacological agents geared towards sex-impulse reduction control.

[21] However, in his report, Dr. Bradford also provided this warning:

The organic treatments using pharmacological agents to reduce his sexual drive is [sic] clearly strongly indicated but even if he was well stabilized on these, he would have to be tested and closely monitored very frequently in a secure inpatient setting over a considerable period of time before any consideration of rehabilitation in a less secure setting could be considered.

[22] In fact, the Hospital Report indicates that no antipsychotic or antiandrogen medication was prescribed for Mr. Magee at MHCP after the late 1980s, when such treatments were discontinued at Mr. Magee's request.

[23] Assessment reports prepared by MHCP after 1992 described Mr. Magee's condition, including his diagnosis and prognosis, and his level of dangerousness in terms similar to those employed by Dr. Bradford. Many of these assessment reports also indicated:

A substantial body of research indicates that conventional treatments do not alter the poor prognosis of those persons whose diagnoses are those of psychosexual disorder and antisocial personality disorder. Mr. Magee, based on his prior history, his history of serial offences, and his diagnoses, is deemed to present an extremely high risk of violent recidivism.

(iii) 2005 Risk Assessment

[24] The 2005 Risk Assessment prepared by MHCP revealed no significant change in Mr. Magee's clinical status or in the degree of risk posed by him. It described his insight into his behaviours as "shallow regardless of the nature of the matter being discussed".

[25] The 2005 Risk Assessment contained a detailed evaluation of Mr. Magee's level of dangerousness. This evaluation commenced with this observation:

Assessment of Dangerousness

Mr. Magee has not displayed management difficulties throughout this reporting period, nor has he throughout much of his admission at Oak Ridge. However, the absence of difficult behaviour does not necessarily inform decision- making regarding the level of risk that an individual, particularly such as he, presents. Instead, static and dynamic risk factors must be carefully considered. [page444]

[26] The "static and dynamic risk factors" applicable to Mr. Magee were stated to include:

(i) a risk of violent recidivism that placed Mr. Magee in the sixth of nine possible categories of risk;

(ii) a psychopathy testing score of 27.4, where scores above 25 are considered "to indicate escalating risk for recidivism and even lower scores will combine with other risk factors such as substance abuse and paraphilia";

(iii) a historical pattern of violence, including sexual violence commencing at the age of 12 when Mr. Magee claims that he raped his 10-year-old sister;

(iv) a long-standing fetishistic arousal to female clothing;

(v) a significant degree of sexual arousal to "a highly sadistic rape scenario" evidenced on phallometric testing in 1991, together with evidence of sexual sadism to heterosexual pedophilia;

(vi) a history of lack of insight and disregard for the needs of others, including an apparent unwillingness to accept responsibility for his problems, rationalization for his past behaviours and a persistent belief that his ex-wife's conduct contributed to the commission of the index offences; and

(vii) a "complex constellation of diagnoses that are highly resistive to treatment".

[27] The 2005 Risk Assessment again emphasized that Mr. Magee's prognosis is poor and that there is little evidence that sexual sadism is amenable to change or that "any effective treatment currently exists to modify behaviours that arise from Mr. Magee's personality structure".

[28] Importantly, the 2005 Risk Assessment also indicated that Mr. Magee had expressed a keen interest in "resuming a heterosexual relationship" once discharged to a medium secure facility, suggesting, in the view of his caregivers at MHCP, that Mr. Magee equates a placement at a medium secure facility with access to women.

[29] This suggestion is supported by a 2001 psychological assessment report, which recorded that, in 2001, Mr. Magee disclosed his belief that the only way he could "progress", or be happy and "grow", was to move to a medium secure facility in order to become involved in a heterosexual relationship. In addition, in [page445] her testimony before the Review Board, Dr. Ramshaw confirmed that Mr. Magee's motivation in seeking a transfer to a medium secure hospital is to obtain access to women and to his family, including his daughter (about whom he admits to having sex-related fantasies) and his ex-wife, whom he continues to regard as his spouse. However, with the exception of his daughter, Mr. Magee's family members wish to have no contact with him. According to Dr. Ramshaw, they are "terrified of [Mr. Magee] coming . . . into the community".

[30] The 2005 Risk Assessment also noted Mr. Magee's unwillingness to accept responsibility for his problems and his rationalization of his past behaviours. Mr. Magee has repeatedly described his index offences as attempts to win his victims' love, or as the result of his former wife's alleged abuse of him. He has stated that he is "a person that needs a lot of love and affection". According to Dr. Ramshaw, Mr. Magee attributes his past offending behaviours (in Mr. Magee's words) to "low self-esteem", his "fantasies", his "depression" and his former wife's alleged infidelity and "abusive" conduct towards him.

[31] Given these concerns, MHCP clinical team members who prepared the 2005 Risk Assessment expressed the unanimous opinion that the likelihood of Mr. Magee reoffending in the future continues to be "extremely high" and that he remains a significant risk to the safety of the public. Their opinions and recommendations were summarized as follows:

[T]he Clinical Team believes that Mr. Magee's risk factors underscore his continued requirement for a highly structured and supervised hospital setting in order to ensure the safety of the public, including hospital staff and co-patients. Further, it is their opinion that a co-educational setting, with a greater percentage of female staff and patients, would potentially place others at undue risk given the nature of the index offences and other previous sexual behaviour, as well as Mr. Magee's ongoing desire to once again become involved in a heterosexual relationship.

In summary, it is the unanimous recommendation of the Clinical Team that Mr. Magee must continue to be detained at the Oak Ridge facility. It is their opinion that the Oak Ridge facility would continue to provide the least onerous and restrictive setting at this time. Clearly, this facility is uniquely resourced and structured to be able to address the twin-goals of safety/security of the public as well as quality of life issues for patients such as Mr. Magee, who would otherwise require extremely restrictive conditions to be able to reside within a less secure environment (e.g. a medium secure unit).

(iv) Klassen Report

[32] In his March 2005 assessment of Mr. Magee, Dr. Klassen agreed with MHCP experts that Mr. Magee does not suffer from a major mental illness. In Dr. Klassen's opinion, and consistent [page446] with Dr. Bradford's 1992 conclusions, Mr. Magee has a personality disorder and suffers from one or more paraphilias (core deviant sexual preferences), as well as an antisocial personality disorder. He also presents with some narcissistic traits.

[33] With respect to the treatment of personality disorders generally, Dr. Klassen commented in his report:

The course of the symptoms of a personality disorder may be exacerbated by psychosocial stress, an unstructured living situation, alcohol or street drug abuse, and non-adherence to prescribed psychiatric or psychological treatment. The main- stay of mental health treatment for individuals who suffer from personality disorders, when this is possible, tends to fall within the psychological, rather than the pharmacological domain, albeit pharmacotherapy is at times used in an adjuvant fashion, targeting specific emotional or behavioural problems.

[34] Dr. Klassen noted that much of Mr. Magee's adult life has been spent "within the highly structured environment of [MHCP], an environment that, by design, will tend to limit the expression of problematic personality traits". He noted, however, that Mr. Magee "evidenced very little rage or behavioural dyscontrol", nor any "efforts at breaches of security of persons or of the institution", while at MHCP.

[35] Dr. Klassen accepted that Mr. Magee could be managed on a medium secure unit, "with respect to both aggressive behaviour and elopement [escape] risk". However, Dr. Klassen cautioned that Mr. Magee "may not fully appreciate . . . how restrictive life on a medium secure unit would be without privileges, in terms of his day-to-day activities" and that, in time, Mr. Magee may find detention on CAMH's medium secure unit "difficult" and "frustrating".

(v) Expert testimony

[36] All three experts who testified before the Review Board were unanimous in their views that Mr. Magee poses a serious risk to the public, especially to women. They agreed that his level of dangerousness has not subsided since his commission of the index offences, that his prognosis is extremely poor and that he poses a very high risk to reoffend.

[37] Mr. Magee's counsel at the Review Board hearing conceded that Mr. Magee "remains a very high risk to reoffend" and "[h] is recidivism rate would be very high if he were to find himself in the community". He confirmed that Mr. Magee's transfer request did not include a request for access to the community.

[38] During her testimony, Dr. Ramshaw indicated that pharmacological treatment for Mr. Magee is not contemplated, in part because Mr. Magee has a history of inaccurate self- reporting and, [page447] further, because there is no available evidence concerning the effects of such treatment on serial offenders, including serial murderers.

(3) Detention conditions at Oak Ridge and CAMH

[39] Mr. Magee currently resides on Ward 04 at Oak Ridge, the most privileged ward of that facility. Dr. Ramshaw indicated that individuals on Ward 04 "wander around the hospital relatively freely" and that Mr. Magee has "free reign of the hospital". Various vocational, educational and recreational facilities are available to patients who reside on this ward. As well, access to an outside exercise yard is provided.

[40] In addition, for many years, Mr. Magee has been extensively involved with the vocational woodworking shop at Oak Ridge. He works in the shop five hours per day. Dr. Klassen noted in his report that Mr. Magee "relies heavily on access to the woodworking shop at MHCP, to provide him with a sense of accomplishment and daytime structure".

[41] In contrast, few, if any, vocational, educational and recreational facilities or programs are provided for residents on either of CAMH's two medium secure units. In particular, no woodworking facility is available at CAMH.

[42] Instead, the focus of CAMH's medium secure units is on therapeutic programming and rehabilitation, with the goal of eventually facilitating a patient's move to minimum security and reintegration into the community. Dr. Darby testified that individual units at CAMH are small and, in the normal course, patients progress after a few months to grounds access escorted by staff members, eventually gaining indirectly supervised access privileges to the grounds. The grounds at CAMH have no secure perimeter and are open to the public. According to Dr. Darby, given the nature of the CAMH facility, a patient on one of its medium secure units could eventually have access to female patients.

[43] Sexual offenders suffering from disorders of the type and extent experienced by Mr. Magee do not currently reside on CAMH's medium secure units. Nor are these units currently set up to accommodate patients on a long-term basis. Patients on medium secure units at CAMH are generally detained for periods of less than one year.

[44] According to Dr. Darby, to date, no organizational or programming changes have been made to the medium secure units at CAMH to accommodate long-term placements of patients on those units, although some preliminary discussions have been held among CAMH staff "about what the impact may be if that ends up [page448] being the thrust of decisions of the [Review] Board" consequent upon emerging jurisprudence concerning NCR detainees.

II. Statutory Provisions

[45] The following provisions of the Criminal Code are relevant: [See Note 2 below]

672.54 [Dispositions that may be made] Where a court or Review Board makes a disposition pursuant to subsection 672.45(2) or section 672.47, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;

(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate. . . . . .

672.78 [Powers of Court of Appeal] (1) The court of appeal may allow an appeal against a disposition or placement decision and set aside an order made by the court or Review Board, where the court of appeal is of the opinion that

(a) it is unreasonable or cannot be supported by the evidence;

(b) it is based on a wrong decision on a question of law; or

(c) there was a miscarriage of justice.

(2) The court of appeal may dismiss an appeal against a disposition or placement decision where the court is of the opinion

(a) that paragraphs (1)(a), (b) and (c) do not apply; or

(b) that paragraph (1)(b) may apply, but the court finds that no substantial wrong or miscarriage of justice has occurred.

(3) Where the court of appeal allows an appeal against a disposition or placement decision, it may

(a) make any disposition under section 672.54 or any placement decision that the Review Board could have made; [page449]

(b) refer the matter back to the court or Review Board for re-hearing, in whole or in part, in accordance with any directions that the court of appeal considers appropriate; or

(c) make any other order that justice requires.

III. Review Board Disposition

[46] In its reasons, the Review Board reviewed the nature and circumstances of the index offences and Mr. Magee's history, background and course at MHCP. It then outlined Mr. Magee's level of dangerousness based on the historical record before it and the expert evidence presented at the Review Board hearing, and summarized the positions of the parties regarding Mr. Magee's transfer request.

[47] The Review Board next undertook an assessment of the threat posed by Mr. Magee to the safety of the public. It accepted the unanimous position of the parties regarding the severity of that threat and Mr. Magee's risk of recidivism, holding that Mr. Magee presents "a high risk if not a very high risk to reoffend" in "an extremely serious manner". The Review Board then concluded that, "[T]he only issue before the Board was what level of security would meet the 'least onerous and least restrictive' test [under s. 672.54 of the Code]."

[48] Based on this formulation of the question in issue, the Review Board held that Mr. Magee ought to be detained on an all-male medium secure unit of CAMH, and be afforded no off- unit privileges save for emergency or compassionate purposes. In the view of the Review Board, Mr. Magee's risk can be managed on a CAMH medium secure unit, so long as he is restricted to the unit. The Review Board concluded:

Hence taking into consideration the criteria set out in section 672.54 of the Criminal Code of Canada, which includes the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, the Board is of the unanimous view that the least onerous and least restrictive disposition and conditions is that the accused be detained on an all-male medium secure unit of [CAMH], with the conditions set out in the formal disposition.

IV. Issues

[49] There are three issues:

(1) What is the appropriate standard of review of the Review Board's disposition?

(2) Did the Review Board err in law in fashioning a disposition for Mr. Magee by applying the wrong legal test under s. 672.54 of the Criminal Code? [page450]

(3) Is the Review Board's disposition order unreasonable or unsupported by the evidence?

V. Analysis

(1) Appropriate standard of review

[50] The standard of appellate review applicable to the review of a disposition order of the Review Board is set out in s. 672.78 of the Code. Under s. 672.78(1), the court may set aside an order of a review board only where it is of the opinion that:

(a) the decision is unreasonable or cannot be supported by the evidence;

(b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or

(c) there was a miscarriage of justice.

See R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, [2003] S.C.J. No. 31, at para. 31; and Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, [2004] S.C.J. No. 56, at para. 24. In this case, the first and second branches of this power of appellate review are implicated.

[51] The first branch of s. 672.78 imports a reasonableness simpliciter standard of review, derived from administrative law principles: see Owen, at paras. 33 and 34; and Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, at para. 17. This standard recognizes a review board's expertise in mental health disorders and attendant safety risks, its specialized knowledge and advantage in observing witnesses, and its familiarity with the situation of a specific NCR accused based upon its annual review of the status of each NCR individual under s. 672.81(1) of the Code. These factors require deference to a review board's risk assessment of an NCR accused and its disposition order: see Owen, at paras. 29-30 and 36-7; and Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at para. 61.

[52] The second branch of the s. 672.78 power of appellate review concerns a wrong decision on a question of law. In this case, MHCP appeals the Review Board's disposition order, in part, on the basis that in determining whether Mr. Magee should be transferred to a medium secure mental health facility, the Board erred in law by misconceiving or ignoring the requirements of s. 672.54 of the Code, thereby applying the wrong legal test to its disposition. This is a question of law that attracts the [page451] correctness standard of review: see Mazzei, at para. 16; Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498, [2003] S.C.J. No. 67 ("Tulikorpi"); and Pinet, at paras. 24-29.

(2) Legal test under s. 672.54

[53] The threshold determination under s. 672.54 of the Code is whether an NCR accused represents a "significant threat to the safety of the public". If such a threat exists, the review board must order that the accused be discharged or detained in custody in a hospital, subject to such conditions as the court or the review board considers appropriate (ss. 672.54(b) and (c) of the Code): see Mazzei, at para. 19. In this case, the Review Board's disposition order was made under s. 672.54(c) of the Code.

[54] There was no dispute before the Review Board that there is a serious need to protect the public from Mr. Magee. As I have said, the Review Board held that Mr. Magee continues to pose a significant threat to the safety of the public and that he poses "a high risk if not a very high risk to re-offend". These factual findings were overwhelmingly supported by the evidence before the Review Board and are not challenged by any party on this appeal. Nor is there any suggestion that the Review Board's risk assessment is itself unreasonable or unsupported by the evidence.

[55] However, MHCP argues that, having determined the risk posed by Mr. Magee, the Review Board erred in law by confining its analysis of an appropriate disposition for Mr. Magee to the narrow question of whether his identified risk to the safety of the public could be "managed" in a medium secure setting. MHCP essentially contends that, in so doing, the Review Board misconceived or ignored the mandatory requirements of s. 672.54 of the Code, with the result that the Review Board applied the wrong legal test under that section. MHCP submits that the Review Board failed to properly consider and apply the "need to protect the public from dangerous persons" and the "other needs of the accused" requirements of s. 672.54, ultimately leading to a disposition for Mr. Magee that was not the "least onerous and least restrictive" in the circumstances.

[56] CAMH and the Crown support these submissions. In particular, CAMH contends that the Review Board erred in law in its approach to the "least onerous and least restrictive" requirement of s. 672.54 of the Code by crafting a disposition that, objectively, was a more restrictive, not a less restrictive, disposition for Mr. Magee and by equating the "least onerous and least restrictive" requirement with the concept of risk "confinement" or "incapacitation". [page452]

[57] I agree that the Review Board's disposition order rests on a flawed legal foundation. Accordingly, it cannot stand and a rehearing before the Review Board is required. I reach this conclusion for the following reasons.

(i) Section 672.54 requirements

[58] In formulating a disposition for Mr. Magee, the Review Board was required under s. 672.54 of the Code to consider: (i) the need to protect the public from dangerous persons; (ii) Mr. Magee's mental condition; (iii) the reintegration of Mr. Magee into society; and (iv) Mr. Magee's "other needs". Ultimately, after taking these factors into account, the Review Board was obliged to make a disposition that was the "least onerous and least restrictive" to Mr. Magee: see Mazzei, at para. 19.

[59] Recent jurisprudence of the Supreme Court of Canada holds that the "least onerous and least restrictive" requirement of s. 672.54 is not free-standing: it cannot be viewed in isolation from the other factors enumerated in that section. In Tulikorpi, at paras. 45 and 67, the Supreme Court held that Parliament's intent under s. 672.54 is to require a review board to consider "at every step of s. 672.54" [Emphasis added] the factors outlined in that section, without segregating the "least onerous and least restrictive" requirement for different or separate consideration. Consequently, the test under s. 672.54 for the making of a disposition order requires that the disposition, including the conditions that apply to the disposition, be evaluated as a whole in accordance with all the requirements of s. 672.54.

[60] Moreover, at every step of this evaluation process, consideration must be given to the liberty interests of the NCR accused: see Tulikorpi, at paras. 53-56. As stated by the Supreme Court in Winko, supra, at para. 16:

Parliament intended to set up an assessment-treatment system that would identify those NCR accused who pose a significant threat to public safety, and treat those accused appropriately while impinging on their liberty rights as minimally as possible, having regard to the particular circumstances of each case.

(ii) Review Board's approach to s. 672.54

[61] In accepting the unanimous position of all the parties that Mr. Magee continues to pose a significant threat to the safety of the public and a high recidivism risk, the Review Board stated:

Mr. Magee still harbors deviant sexual fantasies and is best described as [a] serial murderer with sadist sexual preferences. Mr. Magee's risk to the community cannot be overstated. He scores high on all actuarial risk assessments, including a score of 27 on the [Psychopathy Checklist- Revised]. This suggests that Mr. Magee is unlikely to be responsive to treatment, and [page453] equally as important, is a strong indicator of a high risk of re-offending. . . . The evidence before the Board clearly shows that Mr. Magee desires a new relationship and given Mr. Magee's history and predilection for sadist sexual violence towards women, it is an unacceptable risk to have Mr. Magee in contact with female patients or females in the community, other than required contact with female staff and treatment professionals.

[62] It is evident from these comments that the Review Board was alert to the gravity of the threat posed by Mr. Magee to the safety of the public, especially to women.

[63] I agree with MHCP, however, that once the Review Board determined the risk to public safety posed by Mr. Magee, it erred in law by effectively confining its analysis of an appropriate disposition to the question whether Mr. Magee's identified risk could be "managed" in a medium secure setting at CAMH. In so doing, in my opinion, the Review Board failed to fashion a disposition for Mr. Magee based on consideration of the mandatory requirements of s. 672.54.

[64] Put differently, once the Review Board concluded that Mr. Magee is a substantial threat to the safety of the public, the issue for determination was not simply the identification of the lowest level of security at an Ontario hospital that could contain the risk posed by Mr. Magee. Rather, after the Board completed its risk assessment of Mr. Magee and concluded that his risk could be contained -- in a security sense -- in a medium secure hospital environment, it was incumbent upon the Board to then evaluate the appropriateness of its proposed disposition order by stepping back and considering all the factors enumerated in s. 672.54, including the "least onerous and least restrictive" requirement of that section.

[65] Unfortunately, the Review Board did not undertake this evaluation in this case. Instead, as I have said, the Board focused its inquiry on the issue of risk management to the virtual exclusion of any meaningful consideration of the factors outlined in s. 672.54 in the light of the evidence adduced at the Review Board hearing.

[66] At the outset of the somewhat brief analysis section of its reasons, having expressed its agreement with the parties' unanimous position on the threat to public safety posed by Mr. Magee, the Review Board stated, "The only issue before the Board was what level of security would meet the 'least onerous and least restrictive' test." Immediately thereafter, the Review Board stated its conclusion that Mr. Magee ought to be detained in the future on an all-male medium secure unit at CAMH and "be afforded no off-unit privileges".

[67] The Review Board's disposition was thus predicated on the complete confinement of Mr. Magee on an all-male medium [page454] secure unit at CAMH, with no provision for access to the grounds of CAMH, to the community or to outside programming (including programs for sexual offenders), save for emergency or compassionate purposes. In this sense, the Review Board was concerned not with the treatment of Mr. Magee, his needs or his liberty interests, but rather with his "incapacitation" or "warehousing" to ensure that his risk could be contained. That this was the core of the Review Board's analysis is clear from the following statements in its reasons:

All three expert witnesses agree that Mr. Magee could be managed on a medium secure unit where there is no access to female patients and Mr. Magee would only be off-unit for emergency or compassionate purposes. Indeed Dr. Ramshaw conceded that if Mr. Magee were restricted to the unit without access to the community, Mr. Magee could be managed on the medium secure unit at CAMH. . . . . .

Risk management, as noted by Dr. Klassen, can only be achieved through the imposition of external controls . . . [T]he Board cannot ignore the fact that Mr. Magee has been a good institutional citizen, not posing a significant management issue throughout the 28 years of his stay at Oak Ridge. Although he clearly enjoys a broad range of activities and programs at Oak Ridge that provide him with personal satisfaction and enjoyment, he does not require, at this time, detention in [a] maximum secure setting in order to manage his risk . . . Further, we must caution that Mr. Magee's institutionalized history as a good citizen does not in any way reduce his risk to the community but is relevant to the analysis of level of security between maximum and medium.

[Emphasis added]

[68] The issue of whether a proposed placement of an NCR accused will afford a realistic opportunity to manage his or her risk to the safety of the public is a fundamental consideration in any s. 672.54 analysis. To this extent, therefore, the Review Board's attention to this issue was both proper and necessary. It is not, however, the only consideration relevant to a disposition under s. 672.54(c).

[69] In Owen, supra, the Supreme Court of Canada held that where, as here, a review board reasonably concludes that an NCR accused is a significant threat to the safety of the public, the review board must then devise a disposition order that is the "least onerous and least restrictive" for the NCR accused, consistent with the assurance of public safety. The Supreme Court stated at para. 62:

In considering its order, the [review board] must again have regard to

the need to protect the public from dangerous persons, the mental condition of the [NCR] accused, the reintegration of the [NCR] accused into society and the other needs of the [NCR] accused. . . . .

[Emphasis in original] [page455]

[70] In my opinion, this is precisely the second-stage of requisite analysis that the Review Board failed to undertake in this case. By truncating its analysis in the manner that I have described, the Review Board distorted its mandate under s. 672.54 and misconceived the legal test established by that section for the crafting of a disposition under s. 672.54(c).

[71] Although the Review Board stated in its reasons that it took the criteria set out in s. 672.54 of the Code into consideration in devising a disposition for Mr. Magee, scrutiny of the Board's reasons in view of the evidential record before the Board reveals otherwise.

[72] In this case, the following uncontradicted evidence bore directly on the "need to protect the public" from Mr. Magee, the "mental condition" of Mr. Magee, Mr. Magee's "other needs", and the "least onerous and least restrictive" disposition available for Mr. Magee in the circumstances: Mr. Magee becomes more sexually heightened with any increase in stress; the conditions at CAMH to which Mr. Magee would be subject are much more restrictive than the conditions at MHCP under which he is currently detained; Mr. Magee depends on his daily woodworking activities at MHCP to control his stress and to maintain his self-esteem and self-worth; such vocational therapy will not be available to him at CAMH; and the deprivation of this form of vocational therapy and the restrictive conditions at CAMH will be "difficult" and "frustrating" for Mr. Magee and cause a deterioration in his mental health and an increase in his stress, with an attendant increase in the risk posed by him to the safety of the public.

[73] The evidence before the Review Board demonstrated that woodworking activities and other recreational, educational and vocational activities will not be available to Mr. Magee at CAMH, where he will be required to reside within a double- locked medium secure unit with no access to off-ward programming or privileges save for emergency or compassionate purposes on an escorted basis.

[74] Mr. Magee claimed in his oral submissions before this court that he has chosen recently to abandon his woodworking activities at MHCP because his participation in them has been "used against him".

[75] On the record before the Review Board, however, Mr. Magee himself has acknowledged to Dr. Klassen in the past that he needs access to the woodworking shop at MHCP in order to maintain his self-esteem and feelings of self-worth. Dr. Klassen testified that Mr. Magee "does benefit from his time spent in the vocational shop. It provides him with a sense of mastery, it [page456] provides him with an autonomy experience within the confines of MHCP. I think those probably have a salubrious effect on his mental state."

[76] In his written report concerning Mr. Magee, Dr. Klassen explained:

This gentleman relies heavily on access to the woodworking shop at MHCP, to provide him with a sense of accomplishment and daytime structure. He is likely not an individual particularly predisposed towards treatment groups . . . In my opinion, Mr. Magee, while initially relieved of the psychological burden of indefinite detention at MHCP, would, after a period of time, become frustrated with the confines of a medium secure unit and the relative lack of vocational opportunities there.

[77] Subsequently, during his testimony before the Review Board, Dr. Klassen elaborated:

Frankly, I would think that Mr. Magee would probably [be] entitled to feelings of euphoria at the notion of residing anywhere but MHCP, [that's] not intended to be any slight of MHCP, but, you know, it's a very different environment. The question that seems to me to be, in part, before the Board is, you know, should Mr. Magee be given the opportunity to fail in a small way in a different environment, in a medium secure environment. It's very different, it's going to have frustrations for him. He's going to live in close confines with people and there aren't the vocational resources, and there will be an expectation of therapeutic programming, and you know, there are differences. Although, my sense is that I don't think that any difficulties that Mr. Magee will have in [adapting] to that unit would be unmanageable from a safety [or] security perspective only.

[Emphasis added]

[78] As well, during her testimony, Dr. Ramshaw was asked for her opinion concerning the type of programming that offered the best support for Mr. Magee's well-being. She responded:

It's certainly my view that vocational aspect to -- other than structure and support, that would be primary. Secondary would be having vocational, not so much training, he doesn't need training at this juncture, but being able to work on a daily basis and being able to occupy his mind and himself so that he doesn't become more stressed and he has some meaning to his life. Work has given him great meaning. He has structure to his day. He has very little, very little long term down time. He is a very busy man.

[Emphasis added]

[79] Significantly, Dr. Ramshaw also said that Mr. Magee's confinement in a medium secure unit without the ability to work (as contemplated by the Review Board's disposition order) would be "very psychologically onerous for [Mr. Magee] after a relatively short period". Further, according to Dr. Ramshaw, the denial of off-ward privileges while residing in a medium secure unit (also as contemplated by the Review Board's disposition order), would cause Mr. Magee to "deteriorate" over a period of [page457] months or longer, such that she would expect "his mental state to decline, and that he would look for avenues if he were in such a position".

[80] Thus, the evidence before the Review Board established that, in Mr. Magee's case, idleness and the denial of vocational pursuits (especially woodworking) will be detrimental to his mental health, his "other needs", and to public safety.

[81] In respect of this evidence and its relevance to the disposition to be made for Mr. Magee, the Review Board said:

Although [Mr. Magee] clearly enjoys a broad range of activities and programs at Oak Ridge that provide him with personal satisfaction and enjoyment, he does not require, at this time, detention in [a] maximum secure setting in order to manage his risk. . . . . .

The Supreme Court of Canada has set out definitions for the various levels of security. However, one cannot simply look at whether a facility has bars, instead of doors, or a perimeter fence in order to assess what may be the least restrictive and least onerous disposition and conditions. Available activities and programs do affect the analysis.

[Emphasis added]

[82] The Review Board then concluded:

However, given the evidence of Dr. Darby and Dr. Klassen about the discussion and future planning of changes to the medium secure unit at CAMH in light of the eventuality of having patients that will be long term residents, as well as the clear request of Mr. Magee knowing the challenges that face him on a medium secure unit, the Board unanimously concludes that Mr. Magee ought to be detained on the medium secure unit at CAMH. Mr. Magee may find detention on a medium secure unit perhaps less psychologically intrusive and onerous.

[83] However, on this record, the ability to work at MHCP, especially the opportunity to engage at that facility in woodworking activities, is much more than a mere amenity or pastime for Mr. Magee. The record indicates that, for Mr. Magee, the ability to work and to engage in woodworking activities constitute a form of "treatment" or therapy of compelling significance to his well-being, mental health and avoidance of offending behaviours. In its analysis of an appropriate disposition order, the Review Board failed to take into account this important evidence.

[84] Nor did the Review Board address the unchallenged expert evidence of the likelihood that Mr. Magee would "decompensate" over time at CAMH, that is, his mental health would deteriorate should such vocational therapy and the ability to work be denied to him, with the associated prospect for attenuated safety risks.

[85] In the result, in my opinion, the Review Board failed to have regard to Mr. Magee's need for treatment and to the public [page458] safety implications of the denial to him of one of the few forms of therapy that, in the opinion of the expert witnesses, is of demonstrated usefulness to him. This omission is significant because, as the Supreme Court observed in Tulikorpi, at para. 67:

Section 672.54 directs the Review Board to have regard to "the other needs of the accused" (emphasis added). At the forefront of these "other needs" is the need for treatment. Moreover, public safety, another key factor listed in s. 672.54, is ultimately assured by facilitating the recovery of the NCR accused.

[Emphasis in original]

[86] It is noteworthy, in this regard, that neither Mr. Magee nor amicus curiae counsel sought to introduce fresh evidence before this court suggesting that the importance to Mr. Magee of the ability to work and to participate in vocational activities of the type currently afforded to him at MHCP has diminished. If, as he claims, Mr. Magee has now abandoned his woodworking and other vocational activities, this is a factor to be considered by the Review Board, on proper evidence, at the rehearing that I conclude is necessary in this case.

[87] There are two additional aspects of the Review Board's reasons about which it is appropriate to comment. First, the Review Board emphasized in its reasons that Mr. Magee, knowing "the challenges that face him on the medium secure unit at CAMH", had nonetheless requested a transfer. With respect, this misses the point. The application of the s. 672.54 requirements cannot be avoided, or satisfied, by the fact that an NCR accused wishes to be transferred, knowing that the consequences of the requested transfer may cause him difficulties.

[88] In my opinion, although Mr. Magee's subjective desire for a transfer was one of many factors to be considered by the Review Board, it was not dispositive of whether his transfer to CAMH would meet his mental health and other needs, and ensure the safety of the public. Indeed, given the evidence that Mr. Magee persists in seeking a transfer to a medium secure facility because he believes that it will facilitate his desired access to women, Mr. Magee's motivation in seeking a transfer should have sounded an alarm bell for the Review Board.

[89] Second, although the Review Board referred to the need to be cognizant of Mr. Magee's liberty interests in evaluating the "least onerous and least restrictive" requirement of s. 672.54, and to the relevance of "available activities and programs" to that evaluation, on this record it is evident that the Review Board failed to take into account evidence directly relevant to the "least onerous and least restrictive" disposition for Mr. Magee. [page459]

[90] Mr. Magee's counsel at the Review Board hearing acknowledged that Mr. Magee enjoys "a fairly high quality of life" at MHCP, where a range of recreational, educational and vocational activities are available to him, together with liberal access to MHCP's grounds and facilities.

[91] In addition, Dr. Darby testified:

I think certainly for a patient who is confined pretty well to the medium secure unit at CAMH compared to somebody who is at Oak Ridge, I would say very clearly there's a huge difference and the patients on some of the units at Oak Ridge have much more internal freedom than they would have on the medium unit.

[92] Dr. Ramshaw's and Dr. Klassen's evidence was to the same effect.

[93] In Tulikorpi, the Supreme Court of Canada held that s. 672.54 of the Code entitles an NCR accused to conditions of detention that, viewed in their entirety, are the least onerous and least restrictive of his liberty, consistent with public safety, his mental condition and "other needs" and his eventual reintegration into society. In so holding, the Supreme Court accepted the opinion of Dr. John Bradford, expressed in that case, that "the level of security of the institution in which an NCR accused is detained is not, standing alone, the best measure of the relative liberty available to the individual" (at para. 34).

[94] In this context, the Supreme Court stated (at para. 34):

A severely restricted NCR accused, for example, might find more programs and amenities accessible within the secure perimeter at Oak Ridge than at a less secure hospital where he might be "restricted to the ward he is placed in".

[95] In addition, the Supreme Court referred with implicit, if not explicit, approval at para. 35 to the following opinion expressed by the Crown expert in Tulikorpi, Dr. Stephen Hucker:

There are some [NCR patients] that find conditions in medium to be more restrictive than they thought. The common sense would be, here I am in maximum, medium must be better, it must be [less] restrictive and onerous. But in practice that may not be true.

[96] These observations are apposite here. As the Supreme Court also observed in Tulikorpi (at paras. 28, 31 and 52):

Yet the evidence shows that the restrictions on liberty in various mental institutions and at various levels of security vary enormously. . . . . .

It is obvious that once the Review Board has made the disposition to "a hospital" under s. 672.54(c), choice of the type of hospital and level of security and conditions of detention will have a vital impact on the liberty interest of the detainee. [page460] . . . . .

The unnecessary "trammelling" of liberty can often lie in the precise conditions attached to the order and not just in the general mode of detention. The devil, as is so often the case, lies in the details.

[Emphasis added]

[97] In this case, the Review Board's disposition effectively calls for the detention of a serial murderer and sexual offender on a locked ward not currently designed to house such offenders, without off-ward or outside privileges or programming or the benefit of on-ward educational, vocational and recreational pursuits, at least some of which, on this record, have proven to be beneficial to him and to the protection of the public in his present circumstances at MHCP.

[98] In my opinion, although the Review Board acknowledged that "one cannot simply look at whether a facility has bars, instead of doors, or a perimeter fence" in determining a "least onerous and least restrictive" disposition, the Board failed to evaluate the evidence of the "on-the-ground" conditions of Mr. Magee's proposed detention at CAMH in comparison to those that govern his detention at MHCP. In my view, the Review Board's concentration on whether the risk posed by Mr. Magee could be "managed" at CAMH led to this error.

[99] Finally, it is telling that the Review Board concluded its reasons with this comment: "Mr. Magee may find detention on a medium secure unit perhaps less psychologically intrusive and onerous" [Emphasis added]. This speculative forecast falls far short of meeting the mandatory requirement that the disposition imposed, in fact, be the "least onerous and least restrictive to the accused".

[100] In all these circumstances, in my view, the Review Board's conclusion that its disposition was the "least onerous and least restrictive" disposition available for this NCR accused is tainted by legal error. Scrutiny of the Board's reasons reveals that the Board's disposition was not made after meaningful consideration of the requisite statutory factors, namely, the need to protect the public from Mr. Magee, Mr. Magee's mental condition, his other needs, and his reintegration into society. Accordingly, the Review Board's disposition order cannot stand.

(iii) Substantial wrong or miscarriage of justice

[101] As I have said, under s. 672.78(1) of the Code, the court is empowered to allow an appeal against a review board's disposition order if, as occurred here, the board's decision is based on a wrong decision on a question of law. In Pinet, supra, at paras. 25 [page461] and 28, Binnie J. commented on this branch of the power of appellate review:

Given that the Review Board disposition order was based on a wrong decision on a question of law, as decided in Tulikorpi, can it be said that no substantial wrong or miscarriage of justice has occurred? A miscarriage of justice is itself a "substantial wrong" of course, but not all "substantial wrongs" rise to the level of a miscarriage of justice. Effectively, therefore, an error of law having been established by the appellant, the onus shifts to the respondent Crown to attempt to salvage the Review Board order on the basis that no "substantial wrong" was done. . . . . .

In my view, the reference to no "substantial wrong" in s. 672.78 requires the party seeking to uphold the order (here it is the Crown) to satisfy the appellate court that a Review Board, acting reasonably, and properly informed of the law, would necessarily have reached the same conclusion absent the legal error.

[102] In this case, amicus curiae counsel urges this court to uphold the Review Board's disposition order on various grounds. However, he does not assert that if the Board's disposition was based on a wrong decision on a question of law, it should nevertheless be upheld because no miscarriage of justice or substantial wrong has occurred. In my view, on these facts, any contrary position would be unsustainable.

[103] The error of law in this case, in my opinion, was the ultimate failure of the Review Board to apply the factors specified in s. 672.54 to its proposed disposition, in the light of the evidence adduced at the Review Board hearing. This constitutes a failure to apply the correct legal test under s. 672.54. In these circumstances, I am unable to conclude that the Review Board, properly informed of the law, would necessarily have reached the same conclusion absent the legal error. Accordingly, a rehearing before the Review Board is required.

(3) Reasonableness of the Review Board disposition

[104] In view of my conclusion that a rehearing before the Review Board is required, it is unnecessary to address the additional arguments advanced by MHCP, CAMH and the Crown in support of their joint assertion that the disposition order in question is unreasonable and cannot be supported by the evidence.

(4) Other issues

[105] Although amicus curiae counsel asserted in his factum filed with this court that Mr. Magee's continued detention at Oak Ridge would infringe Mr. Magee's rights under s. 7 of the Charter of Rights and Freedoms, this claim was not pursued in [page462] oral argument before us. Nor was it raised before the Review Board. In any event, the Charter challenge, as I understand it, is premised on the proposition that the denial of Mr. Magee's transfer to a medium secure unit at CAMH would unjustifiably interfere with his personal liberty. However, as I have endeavoured to explain, there was evidence before the Review Board, which the Board failed to consider, suggesting that it is the transfer to CAMH, rather than the continuation of his detention at MHCP, that would trigger further restrictions upon Mr. Magee's liberty interests. It is for the Review Board conducting the rehearing to determine, on all the relevant evidence before it, which disposition for Mr. Magee will satisfy the requirements of s. 672.54.

VI. Disposition of Appeal

[106] For the reasons given, I would allow the appeal, set aside the Review Board's disposition order and refer the matter back to the Board for a rehearing. As Mr. Magee's circumstances may have changed since the date of the disposition order at issue on this appeal, I would further direct that the rehearing be expedited and that, pending the rehearing, Mr. Magee continue to be detained at the Oak Ridge Division of MHCP.

Appeal allowed.

Notes

Note 1: The NCR provisions of the Code were introduced in 1991 by An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, c. 43, in response to R. v. Swain, [1991] 1 S.C.R. 933. In that case, the Supreme Court of Canada held that the former s. 542(2) of the Criminal Code, R.S.C. 1970, c. C-34, infringed s. 7 of the Charter of Rights and Freedoms.

Note 2: Amendments to s. 672.54 effective January 2, 2006 are not engaged on this appeal.