Court of Appeal for Ontario

Date: 2001-05-31 Docket: C34987

B E T W E E N:

The Administrator of the Penetanguishene Mental Health Centre and the Administrator of the Whitby Mental Health Centre Appellants

• and -

The Attorney General for Ontario Respondent

• and -

Pertti Tulikorpi Respondent

Before: Moldaver, MacPherson and Simmons JJ.A.

Counsel: Linda Omazic for the Appellants Beverly A. Brown for the Respondent, the Attorney General for Ontario Delmar Doucette, for the Respondent, Mr. Tulikorpi

Heard: April 5, 2001

On appeal from the disposition of the Ontario Review Board dated July 24, 2000.

Reasons for Decision

MOLDAVER J.A.:

[1] The primary issue in this appeal is whether the Ontario Review Board (the "Board" or "Review Board") applied the wrong legal test in deciding that as a condition of his continued hospitalization under s. 672.54 of the Criminal Code, the respondent, Pertti Tulikorpi, should be transferred from a maximum security hospital to a medium security hospital.

Background Facts

[2] Pertti Tulikorpi has suffered from chronic schizophrenia since at least 1986. Between 1986 and 1991, he was hospitalized on numerous occasions as a result of his illness. On one such occasion in 1987, he sexually molested a female patient and was charged with and convicted of sexual assault. That was not his first offence. His criminal record dates back to 1981 and includes convictions for mischief, failing to appear, breach of probation and theft.

[3] On March 11, 1991, while living at a rooming house for persons with mental disorders, Mr. Tulikorpi stabbed a male staff-worker. He did so under the delusional belief that the worker had beaten and raped him and that he was about to strangle Mr. Tulikorpi's mother. The incident resulted in a charge of assault with a weapon, for which Mr. Tulikorpi was found not criminally responsible on account of mental disorder on April 30, 1991.

[4] As a result of this finding, Mr. Tulikorpi was committed on August 13, 1991 to the Kingston Psychiatric Hospital, a medium security facility. He remained there until January 19, 1993, at which time the Board ordered his transfer to the Oak Ridge Division of the Penetanguishene Mental Health Centre, a maximum security facility.

[5] Following his arrival at Oak Ridge, Mr. Tulikorpi was diagnosed as suffering from chronic paranoid schizophrenia, a personality disorder with anti-social traits, and substance abuse. That diagnosis remains unchanged to this day.

[6] Annual review hearings conducted by the Board from 1993 to and including 1999 resulted in Mr. Tulikorpi's continued hospitalization at the Oak Ridge Division. That situation changed however following Mr. Tulikorpi's annual review on July 13, 2000. By disposition dated July 24, 2000, the Board ordered that he be transferred from Oak Ridge to the medium security unit at the Whitby Mental Health Centre. The essence of the Board's decision is found in the following two paragraphs of its reasons:

The Board is unanimously of the view that Mr. Tulikorpi continues to represent a significant threat to the safety of the public by reason of his poor insight into his mental illness and as to the need for medication as well as the probability that he would immediately become non-compliant in terms of medication and would decompensate such that his behaviour would become dangerous if left to his own devices. He clearly requires monitoring and supervision.

However, section 672.54 of the Criminal Code requires this Board to make a disposition that is the least onerous and least restrictive to the accused taking into account 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. Having carefully reviewed the hospital report on a year by year basis since Mr. Tulikorpi's initial admission to the Kingston Psychiatric Hospital in 1991 and his transfer to the Oak Ridge Division of the Mental Health Centre, Penetanguishene in 1993, where he has remained to date, and taking into account that there have been no episodes of physical assault for four years, only one episode of sexually inappropriate behaviour in 1998 and no episodes of sexually inappropriate behaviour since that time, the fact that water intoxication can and is often managed at medium secure facilities, and the increased family support that would be available to him if he were located closer to Toronto, with all due respect to the submissions made on behalf of the hospital which were carefully considered by the Board, this Board is unanimously of the view that the least onerous and least restrictive disposition for the accused is as follows: one, transfer to the medium secure unit of the Whitby Psychiatric Hospital, two, hospital and grounds privileges, staff accompanied. (Emphasis added)

[7] The Administrators of the Penetanguishene and Whitby Mental Health Centres take issue with the Board's decision. In particular, they, along with the Attorney General for Ontario, submit that the Board applied the wrong legal test in concluding that Mr. Tulikorpi should be transferred to a medium security facility. The Administrators further submit that the Board's decision is unreasonable and cannot be supported by the evidence. If successful, they do not ask this court to exercise its jurisdiction under s. 672.78(3)(a) of the Code and order that Mr. Tulikorpi be kept in secure custody at Oak Ridge. Rather, they request that the matter be remitted to the Board for a rehearing pursuant to s. 672.78(3)(b).

[8] For reasons which follow, I am satisfied that the Board applied the wrong legal test in determining that Mr. Tulikorpi should be transferred to a medium security facility and in the circumstances of this case, I have concluded that the appeal must be allowed for that reason alone. As for the second submission, I am not persuaded on the basis of this record, that had the Board applied the correct legal test, it would inevitably have accepted the position of the hospital, supported by the Attorney General, that Mr. Tulikorpi should remain hospitalized at Oak Ridge. I am, however, of the view that before rejecting the uncontradicted evidence and recommendations of the experts who examined Mr. Tulikorpi, the Board should have obtained more information about two matters which figured prominently in its decision, namely: (a) the precise reason or reasons underlying Mr. Tulikorpi's transfer from the medium security facility at Kingston to the maximum security facility at Oak Ridge in January 1993; and (b) the suitability of the Whitby Mental Health Centre to monitor and treat Mr. Tulikorpi, having regard to the need to protect the public from dangerous persons, as well as Mr. Tulikorpi's particular mental condition and other needs.

Relevant Statutory Provisions

[9] The relevant Criminal Code provisions are as follows:

s. 672.54 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(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.

(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;

(b) refer the matter back to the court or Review Board for rehearing, 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.

672.81(1) A Review Board shall hold a hearing not later than twelve months after making a disposition and every twelve months thereafter for as long as the disposition remains in force, to review any disposition that it has made in respect of an accused, other than an absolute discharge under paragraph 672.54(a).

Analysis

Issue One - Did the Review Board apply the wrong legal test in determining that as a condition of his continued detention in a hospital, Mr. Tulikorpi should be transferred to a medium security facility?

[10] For the purpose of this appeal, the parties accept that in directing Mr. Tulikorpi's transfer from a maximum to a medium security facility, the Board was imposing a condition on its order under s. 672.54(c) of the Code that he be detained in a hospital. (See R. v. Pinet (1995), 1995 CanLII 371 (ON CA), 23 O.R. (3d) 97 at p. 102). It is further accepted that the decision to transfer was based, at least in part, on the Board's belief that as a matter of law, it was required under s. 672.54 to impose the "least onerous and least restrictive" conditions upon Mr. Tulikorpi, taking into account the need to protect the public from dangerous persons, Mr. Tulikorpi's mental condition, his reintegration into society and his other needs. At issue is whether the Board was correct in applying the "least onerous, least restrictive" test to this aspect of its decision.

[11] The appellants submit that the Board erred in applying that test. They rely upon two authorities from this court which are directly on point and which, if correctly decided, conclusively establish that the Board did apply the wrong legal test. The authorities in question are: R. v. Pinet, supra, and Penetanguishene Mental Health Centre v. Ontario (Attorney General) (1999), 1999 CanLII 1795 (ON CA), 131 C.C.C. (3d) 473, leave to appeal to the Supreme Court of Canada refused, [1999] S.C.C.A. No. 114.

[12] The circumstances and issues in the Penetanguishene case are similar to those in the present case. At issue in that case was whether the Board's decision to transfer Ronald Clement from the maximum security unit at Oak Ridge to the medium security unit at the Whitby Mental Health Centre was unreasonable. Writing for a unanimous court, Goudge J.A. found that the Board's decision to transfer was unreasonable for three reasons, the first being that it had applied the wrong legal test in reaching its decision. The relevant passage, found at p. 478, deals precisely with the issue at hand:

First, the Review Board appears to have used the wrong test in reaching its decision. It ordered the transfer of Mr. Clement to a medium security facility because that constituted the least restrictive disposition for him in light of the need to protect the public from dangerous persons, his mental condition, and his other needs. However, as this court said in R. v. Pinet (1995), 1995 CanLII 371 (ON CA), 23 O.R. (3d) 97 at 102, 100 C.C.C. (3d) 343 (C.A.), these considerations should only be applied in choosing among the three alternative dispositions in paras. (a), (b) and (c) of s. 672.54.

Here, the Review Board was deciding upon the conditions that should attach to the detention of Mr. Clement in a hospital. In doing so the Code requires the Board to apply the conditions that it considers appropriate. While this standard of appropriateness may include consideration of the relative restrictiveness of conditions, it is not confined to that.

[13] Mr. Tulikorpi raises two arguments in support of his position that Pinet and Penetanguishene were wrongly decided and ought not to be followed.

[14] First, he submits that there are conflicting authorities from this court which hold that the "least onerous, least restrictive" test does apply to conditions imposed by a court or Board in respect of orders made under subsections (b) and (c) of s. 672.54. In this regard, he relies on Galligan J.A.'s three paragraph dissenting opinion in R. v. Toneri (1995), 1995 CanLII 1280 (ON CA), 97 C.C.C. (3d) 190 and two sentences, at pp. 221 and 222, from Doherty J.A.'s majority opinion in R. v. LePage (1997), 1997 CanLII 2236 (ON CA), 119 C.C.C. (3d) 193, aff'd 1999 CanLII 697 (SCC), [1999] 2 S.C.R. 744.

[15] I see no merit in this submission. The two authorities in question do not in my view conflict with Pinet and they certainly do not overrule it. Pinet is not even mentioned in Toneri and the only reference to it in LePage is at p. 218 where Doherty J.A. cites it with approval:

. . . If the court or Review Board does not form the opinion that the accused is not a significant threat to the safety of the public, it must proceed to the second stage of the inquiry. At that stage, it may impose either a conditional discharge or order the accused detained in a hospital. In choosing between these two alternatives, the court or Review Board must make the disposition which is "least onerous and least restrictive to the accused." Consequently, an order detaining an accused in a hospital can only be made where the court or Review Board is satisfied having regard to the considerations enumerated in s. 672.54 that detention in a hospital is the least onerous and least restrictive disposition available: Pinet v. Ontario (1995), 1995 CanLII 371 (ON CA), 100 C.C.C. (3d) 343 (C.A.).

[16] As indicated, the passage from LePage upon which Mr. Tulikorpi relies is found at pp. 221 and 222. It reads as follows:

In any event, I cannot agree that s. 672.54 places any "practical burden" on an accused to establish entitlement to an absolute discharge. This section does not speak in terms of any onus. Nor, does it have the effect of placing any burden on a NCR accused. Rather, the section calls upon the court or Review Board to determine whether it can form the opinion which is a condition precedent to an absolute discharge. If it cannot, it must proceed to determine whether an accused should be released conditionally or detained in a hospital and what conditions, if any, should be imposed. In making this determination, the court or Review Board must decide what disposition is least onerous and restrictive. (Emphasis added)

[17] I am not persuaded that this passage assists Mr. Tulikorpi. To the contrary, I am satisfied that when Doherty J.A. uses the words "in making this determination" in the last sentence, he is not referring to the conditions attaching to an order made under subsections (b) or (c) but instead, to the decision whether an accused, found not criminally responsible (a NCR accused), should be conditionally released or detained in a hospital. Manifestly, as Doherty J.A. observes, a court or Review Board making that determination must apply the "least onerous, least restrictive" test. That, of course, accords with what this court said in Pinet.

[18] The second argument raised by Mr. Tulikorpi is that Pinet and Penetanguishene have been overtaken and implicitly overruled by Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625. Winko, of course, is the landmark decision in which the Supreme Court of Canada found that, properly construed, s. 672.54 of the Code does not violate the s. 7 or s. 15 Charter rights of a NCR accused. In reaching that conclusion, McLachlin J. (as she then was), for the majority, carefully considered the history, structure and purpose of Part XX.1 of the Code in conjunction with the specific wording and function of s. 672.54.

[19] Given their potential significance to the issue at hand, I have read and reread the majority reasons in Winko with a view to discerning whether McLachlin J. intended that the "least onerous, least restrictive" test apply not only to the three categories of disposition referred to in subsections (a), (b) and (c) of s. 672.54 but also, as Mr. Tulikorpi submits, to conditions a court or Review Board might see fit to impose under subsections (b) or (c) of that provision. In the end, although I recognize that there are isolated passages that could be construed as supporting Mr. Tulikorpi's position, when the reasons are read as a whole, I am not persuaded that McLachlin J. intended that the "least onerous, least restrictive" test apply to conditions imposed under subsections (b) and (c). It follows, in my view, that Pinet remains the law of this province and it has not been overruled by Winko. My reasons for so concluding are threefold.

[20] First, Pinet is not even mentioned in Winko, let alone explicitely overruled. Given that the construction of s. 672.54 formed the centrepiece of both decisions and that the resolution of the s. 7 constitutional issue in Winko hinged on the provision's proper construction, I believe that McLachlin J. would have explicitly overruled Pinet had she been of the view that the construction given to it by this court undermined its constitutional integrity.

[21] Second, I note that in her reasons, whenever McLachlin J. refers to the "least onerous, least restrictive" test, she does so in the context of the three categories of disposition identified in subsections (a), (b) and (c) of section 672.54. For example, at paragraph 42, she states:

… The NCR accused is not to be punished. Nor is the NCR accused to languish in custody at the pleasure of the Lieutenant Governor, as was once the case. Instead, having regard to the twin goals of protecting the safety of the public and treating the offender fairly, the NCR accused is to receive the disposition "that is the least onerous and least restrictive" one compatible with his or her situation, be it an absolute discharge, a conditional discharge or detention: s. 672.54. (Emphasis added)

Likewise at paragraph 47, McLachlin J. observes:

The introductory part of s. 672.54 requires the court or Review Board to consider the need to protect the public from dangerous persons, together with the mental condition of the accused, his or her reintegration into society, and his or her other needs. The court or Review Board must then (the operative verb is "shall") make the disposition - absolute discharge, conditional discharge, or detention in a hospital "that is the least onerous and least restrictive to the accused". (Emphasis added)

Another example appears at paragraph 55:

… If the court or Review Board, after reviewing all the relevant material, cannot or does not conclude that the NCR accused poses a significant threat to public safety, it must order an absolute discharge. If it concludes that the NCR accused does represent such a threat, then it must order the least restrictive of the two remaining alternatives of conditional discharge or detention consistent with its analysis of the four mandated factors. (Emphasis added)

[22] In contrast to this, nowhere in her reasons does McLachlin J. associate the "least onerous, least restrictive" test to the conditions that a court or Review Board may see fit to impose in respect of dispositions made under subsections (b) or (c) of s. 672.54.

[23] Third, and perhaps most significantly, I think for present purposes, the importance of Winko lies in the fact that the Supreme Court corrected the commonly held view that if a court or Review Board, faced with deciding whether a NCR accused should be discharged absolutely or conditionally, was uncertain whether he or she would pose a serious risk to society if discharged absolutely, it could err on the side of caution and impose a conditional discharge. Similarly, if the choice was between a conditional discharge and detention in a hospital and the court or Review Board was uncertain whether a conditional discharge was warranted having regard to its analysis of the four mandated factors specified in the introductory part of s. 672.54, it could err on the side of caution and order detention in a hospital. Winko put an end to this practice by pointing out that it rested on a faulty construction of s. 672.54.

[24] According to McLachlin J., properly construed, s. 672.54 provides that if a court or Review Board, faced with a decision to discharge absolutely or conditionally, cannot be certain that the NCR accused will represent a significant threat to society if discharged absolutely, then it is required to apply the "least onerous, least restrictive" test and discharge absolutely. Likewise, when faced with a decision to discharge conditionally or hospitalize, if, consistent with its analysis of the four mandated factors in s. 672.54, a court or Review Board cannot be certain that a conditional discharge is unwarranted, then it is required to apply the "least onerous, least restrictive" test and discharge conditionally. Notably, however, Winko stopped short of advocating a similar analysis in the case of conditions attaching to dispositions made under subsections (b) or (c) of s. 672.54.

[25] In sum, I can find nothing in Winko that detracts from the view expressed by McKinlay J.A. on behalf of this court in Pinet at p. 101:

In my view, the correct reading of s. 672.54 is that only three dispositions are possible - (a) absolute discharge, (b) discharge subject to conditions, and (c) detention in a hospital subject to conditions - and that the criteria set out in the preceding portion of the section are relevant only to a choice between dispositions (a), (b), or (c). Thus consideration of the least onerous and least restrictive disposition is required only with respect to a determination as to whether the accused should be absolutely discharged, discharged subject to conditions, or detained in a hospital subject to conditions. That determination having been made, and the requirements in the first part of s. 672.54 having been satisfied, it is not necessary that the Board, in imposing conditions under (b) or (c), consider whether the type of hospital or the conditions contemplated under (b) or (c) would be the least onerous and least restrictive.

[26] Apart from anything else, I believe that in general, McKinlay J.A.'s construction of s. 672.54 makes good sense from a practical point of view. Requiring a Review Board to apply the "least onerous, least restrictive" test to every condition that could be said to impact on the "liberty" of a NCR accused would be to hamstring the Board in the exercise of its discretion and place this court in the untenable position of having to micro-manage the Board's every decision. Take for example the situation where a Board, in the context of a conditional discharge, chooses to impose a curfew on the NCR accused from 11:00 p.m. to 6:00 a.m. Assuming that a curfew is otherwise justified, surely the 11:00 p.m. to 6:00 a.m. time-frame should not be open to attack because the Board could not rule out the possibility that a slightly shorter time-frame would suffice. The same can be said for all manner of conditions, including residence restrictions, travel restrictions, reporting requirements and the like. In short, I do not accept that Parliament intended to fix Boards with the next to impossible task of having to fine-tune conditions with the degree of precision and exactness needed to meet the "least onerous, least restrictive" test.

[27] That said, in light of Winko, I recognize that the Pinet approach may be less palatable when the condition in question relates to the security level of the hospital in which the NCR accused is to be detained.[^1] For my part, were it not for Pinet, I think a forceful argument could be made that the naming of a specific hospital or type of hospital within which the NCR accused is to be detained is not a condition at all but rather, an integral part of the disposition under subsection (c).[^2] In that event, the court or Board would of course be obliged to apply the "least onerous, least restrictive test" in arriving at its decision. It may be that further guidance from the Supreme Court of Canada is needed on this and other matters relating to the question of conditions. Alternatively, if Pinet stands in all respects, then Parliament may wish to consider whether s. 672.54 should be amended to specify that the "least onerous, least restrictive" test should be applied when a court or Board is deciding something as significant as the security level of the hospital within which the NCR accused is to be detained.

[28] Given my conclusion that Pinet remains the law of this province, it follows that the Review Board in the instant case applied the wrong legal test in deciding that Mr. Tulikorpi should be transferred to a medium security facility.

Issue Two - Unreasonable Decision

[29] In the particular circumstances of this case, I cannot be certain that the Board would necessarily have come to the same conclusion it did had it applied the correct legal test. Accordingly, the appeal must succeed. By the same token, on the basis of the record at hand, I cannot say that the decision of the Board would inevitably have been different had it applied the correct legal test. Hence, this is an appropriate case to exercise the authority conferred under s. 672.78(3)(b) of the Code and refer the matter back to the Board for rehearing.

[30] At the rehearing, in addition to applying the correct legal test as it relates to conditions attaching to Mr. Tulikorpi's continued hospitalization, there are two additional matters that I would respectfully direct the Board to consider.

[31] First, it is apparent from the reasons of the Board that in deciding to transfer Mr. Tulikorpi to a medium security facility, the Board was influenced, in no small measure, by the fact that Mr. Tulikorpi had originally been hospitalized in the medium security section of the Kingston Psychiatric Hospital and that his transfer to Oak Ridge in 1993 was not due to the fact that he presented a serious management problem but because the facilities at Oak Ridge would better enable him to participate in recreational activities and improve the quality of his life.

[32] The information relating to Mr. Tulikorpi's transfer from Kingston to Oak Ridge is found in a report prepared by the Administrator of the Penetanguishene Mental Health Centre dated May 24, 2000. While the report clearly indicates that Mr. Tulikorpi was not presenting a serious management problem in the fall of 1992 when his treating psychiatrist recommended that he be transferred to Oak Ridge, it also points out that for a substantial period of time after his arrival at the Kingston Hospital, Mr. Tulikorpi refused to take any medication, he engaged in sexually inappropriate conduct such as masturbating and walking around nude in public, and he was psychotic and suffered from paranoid delusions. The report also notes that his willingness to be treated with certain drugs in November 1992 was only forthcoming after his warrant was rewritten to allow for his transfer to Oak Ridge.

[33] In its reasons, the Board did not mention these troublesome features about his stay in Kingston, nor did it seem overly concerned with the testimony of Mr. Tulikorpi's attending psychiatrist, Dr. Jacques, who doubted very much whether the transfer from Kingston to Oak Ridge was precipitated solely or even primarily for the purpose of improving Mr. Tulikorpi's quality of life.

[34] As indicated, in coming to its decision to transfer Mr. Tulikorpi to the medium security unit at Whitby, the Board considered it significant that he had originally been detained in the medium security unit at Kingston and that his transfer was apparently not "management" related. With respect, I think the information before the Board relating to Mr. Tulikorpi's transfer to Oak Ridge was deficient and to the extent that the Board intended to rely on his stay at Kingston and the reason for his transfer as partial justification for his transfer to Whitby, it should have gathered further and better information. Accordingly, at the rehearing, I would direct the Board to obtain and consider such additional information. Its authority for doing so is found in Winko, supra, at p. 160. In the circumstances, this should not pose a problem for the Board. A simple request that the relevant records from the Kingston hospital be produced should suffice.

[35] Second, the experts who examined Mr. Tulikorpi were unanimous in their opinion that in view of the nature of his illness and his lack of insight into it and the need to take medication, his self-indulgent personality and his intimidating behaviour towards other patients, it would be difficult, if not impossible, for the staff at Whitby or any other medium security facility to monitor and control his activities and prevent him for physically or sexually assaulting other patients. According to the experts, this concern was particularly acute given Mr. Tulikorpi's propensity to engage in sexually inappropriate conduct and the fact that he would be in the company of female patients at Whitby. While the experts, particularly Dr. Jacques, conceded that it had been some time since Mr. Tulikorpi had either physically assaulted anyone or engaged in inappropriate sexual behaviour, Dr. Jacques put this down to the fact that Oak Ridge was not only well-staffed but staffed by persons who knew Mr. Tulikorpi well and who would intervene before things got out of hand.

[36] Manifestly, the Board was alive to these concerns, as well as the additional concern that Mr. Tulikorpi had to be closely watched to ensure that he did not become intoxicated from the excessive consumption of water. That said, apart from observing that "water intoxication can and is often managed at medium secure facilities", there is nothing in the reasons of the Board from which I can conclude that because of its expertise, it was able to take official notice of the resources available at Whitby and their adequacy in relation to Mr. Tulikorpi's specific needs and problems. Bearing in mind that there was no evidence before the Board on this subject, I think that Goudge J.A.'s remarks at p. 480 of Penetanguishene are apposite:

Hence, it seems to me that a specific order like the order in this case requires either some evidence concerning the host facility or perhaps some showing by the Review Board in its reasons of information concerning the facility of which it is able to take official notice.

[37] It may be that the Board, in this case, is sufficiently knowledgeable of the facilities and resources at Whitby such that it can take official notice of them. If so, it will no doubt make that clear in its reasons following the rehearing should it decide to confirm its decision transferring Mr. Tulikorpi to Whitby. If not, then in my respectful opinion, the Board should gather information on this subject before specifying Whitby as the hospital to which Mr. Tulikorpi is to be transferred. The same, of course, would apply to any other medium security facility the Board might have in mind.

Conclusion

[38] In the result, the appeal is allowed and the matter is referred to the Review Board for rehearing in accordance with the directions of this court.

"M.J. MOLDAVER J.A."

"I AGREE J.C. MacPHERSON J.A."

"I AGREE J. SIMMONS J.A."

RELEASED: MAY 31, 2001

MJM

[^1]: To a certain extent, we are in the dark on this because the record tells us little about the differences between maximum, medium and minimum security institutions. [^2]: As indicated, the case was not argued on this basis. Rather, it was presented on the basis that in light of Winko, the Board was correct in applying the "least onerous, least restrictive" test to the conditions it saw fit to impose.